First, I’m proud to announce that I’m now able to defend cyber crimes and other criminal charges in greater Chicago. My practice as a cyber crime criminal defense attorney has always been national, but I've made it a little more official with the new admission to practice law in the U.S. District Court for the Northern District of Illinois. This includes federal courts in greater Chicago as well as the federal courthouse in Rockford, Ill. This allows me to defend more criminal cases in Chicago, which sees a variety of cyber crime cases. In fact, just this month, greater Chicago saw a child pornography possession case ending in a plea deal with federal prosecutors.The bar admission is in addition to my admissions to practice law in the Northern, Middle and Southern Districts of Florida as well as the state of Florida and Washington, D.C.

Second, on the subject of Washington, D.C., an article about a cyber crime prosecution in that jurisdiction caught my eye. According to the National Law Journal, the D.C. federal courts have dismissed half the charges against a man accused of attempting to persuade another adult to make a child available for sex. A federal judge dismissed a charge of attempted persuasion and enticement of a minor against Ivan Nitschke, saying his actions did not constitute a crime. Left in place was a charge of traveling to engage in illicit sexual conduct. In dismissing the case, the judge said the evidence didn’t show that Nitschke ever spoke directly to the minor (who was fictitious) or attempted to indirectly persuade him to have sex through the adult he was speaking to, an undercover D.C. law enforcement officer.

Nitschke, a Canadian visiting Virginia, chatted with the detective on a website known as a dating forum for gay men. The detective was logged in under the screen name DC Perv and his profile expressly said he was into “twisted” things including young partners. He told Nitschke that he was having sex with a 12-year-old boy and would be open to a threesome after an initial one-on-one audition with just the adults. They arranged to meet inside the District of Columbia, where Nitschke was arrested as soon as he showed up. He was then indicted by a grand jury for attempted coercion and enticement of a minor — which carries a 10-year mandatory minimum prison sentence — and travel with intent to engage in illicit sex. Nitschke stipulated to all the facts alleged, but moved to dismiss the first count.

The judge ultimately agreed to dismiss the charge, finding that the undisputed facts showed no intent to persuade a minor directly or indirectly. Of course, no facts did or could prove that Nitschke attempted to persuade a minor directly, since there was no minor. The chat transcripts show that he talked only to the police detective, the court noted. Federal courts have found that a defendant may be convicted of indirectly persuading a minor when he attempts to cause the assent of the minor through an adult intermediary. A recent D.C. Circuit case had upheld a conviction in a similar case, but the judge said that majority opinion didn’t address the issue of whether the defendant had attempted to persuade an adult or a child. The judge in Nitschke’s case also found it important that he never offered money or anything else of value for the sex — he took up an invitation to join existing plans the detective supposedly had.

This is only a lower-court decision, but it’s heartening and educational for me as a solicitation of a minor defense lawyer. The judge’s order goes into some detail about previous cases involving the issue of what exactly it means to entice or persuade a minor. Only the Eleventh Circuit, our appeals court here in Florida, has ruled that persuasion of an adult is sufficient to break the law, and a subsequent panel suggested this was wrong; the other courts. At least four other courts identified in the order have required hat the communications with the adult contain some attempt to indirectly persuade the minor, such as asking the minor’s opinion or sending gifts. This fine distinction is easy to lose in child sex abuse cases, which often evoke strong feelings from juries and judges. If the D.C. Circuit gets this case, I hope as a cyber crime criminal defense attorney that it sides with the majority of its sister courts.

Continue reading " Federal Judge Throws Out Charges Against Man Accused of Online Solicitation of a Minor " »

As a criminal defense attorney in south Florida, I am part of a legal system that relies on adversaries to share certain specified information about cases. Information-sharing at the start of a criminal prosecution is called discovery, and it is not optional — withholding important information is punishable when the judge discovers it. However, prosecutors eager to get a conviction sometimes withhold evidence anyway — and judges don’t always find out, or react properly when they do. This can create a wrongful conviction requiring a retrial or a even a court order allowing the defendant to go free. That was the allegation in Smith v. Cain, a recent U.S. Supreme Court ruling alleging that New Orleans prosecutors failed to disclose contradictory statements made by the one eyewitness to the murder of five people. Because of that failure, the high court vacated the conviction of Juan Smith.

Smith was convicted for the murders and armed robbery on the testimony of Larry Boatner. Boatner said he was at a friend’s when armed gunmen burst in and demanded money and drugs, then began shooting. There were no other witnesses, and no physical evidence that Smith was involved. Boatner’s testimony at trial said Smith was the first gunman to come through the door. However, after Smith was convicted and began petitioning for post-conviction relief, he obtained police files with notes showing that Boatner had repeatedly told police he couldn’t identify the gunmen. In one note, Boatner said that he could only describe them as black males; in another, he said he wouldn’t know them if he saw them again because he couldn’t see their faces. Boatner alleged that this violated 1963’s Brady v. Maryland, which requires police to share relevant evidence. After his rejection by lower courts, the U.S. Supreme Court granted certiorari.

In a surprisingly brief opinion, Chief Justice John Roberts reversed all of the lower courts, vacating Smith’s conviction. Brady says prosecutors violate the defendant’s constitutional right to due process by withholding material evidence favorable to the defense; the two sides disagreed on whether Boatner’s statements to police were material. The majority found that it was. Established law says evidence is material when it may reasonably have changed the case’s outcome, at least enough to undermine confidence in the trial. The court wrote that this standard was met, both because the prosecutors in Smith’s case didn’t have enough evidence outside of Boatner’s statements to convict Smith, and because Boatner’s testimony directly contradicted his statements to police. A considerably longer dissent by Justice Thomas argued that the majority had failed to properly consider prosecutors’ arguments.

This decision reiterates support for existing law, but it’s still good news for criminal defendants and Miami-Dade criminal defense lawyers like me, because it strengthens the well-established rule that prosecutors may not withhold favorable evidence. To do otherwise would undermine the criminal justice process by allowing prosecutors to give themselves an unfair advantage. After all, juries cannot decide cases based on evidence they never see, nor can defendants construct their best possible cases without knowing material facts involved in the prosecution. In the nearly 50 years since the Brady decision, courts have established that this includes evidence that could impeach a witness as well as exculpatory evidence. As a Fort Lauderdale criminal defense lawyer, I appreciate having the opportunity to make the best possible case for my clients without misconduct by prosecutors.

Continue reading " Supreme Court Orders New Trial in Murder Case Where Prosecutors Withheld Evidence – Smith v. Cain " »

As a child pornography criminal defense attorney, I know my clients frequently face very long prison sentences for child pornography crimes. This is not just because child pornography crimes are reviled in our society; many of the available sentence enhancements add considerable time and are common. As a result, it’s common to see an appeal of just the sentence for a child pornography case, even when the defendant does not contest the underlying criminal charge. In United States v. Olson, defendant Timothy James Olson of North Dakota challenged his sentence on the relatively new ground of Tapia v. United States, a U.S. Supreme Court ruling that courts may not extend prison sentences for the purpose of rehabilitation or any treatment program. The sentence was ultimately sent back to the district court for reconsideration.

Olson turned himself in to police and admitted molesting his stepdaughter for seven to eight years, starting when she was five years old. In the ensuing investigation, police discovered that Olson also had more than 2,000 digital images of child pornography. The child pornography case was prosecuted federally, with sentencing after Olson pleaded guilty in state court to continuous sexual abuse of a child and began serving 30 years in state prison. He also pleaded guilty in federal court to possession of child pornography, saying at a hearing that he had an addiction. The district court declined to apply a sentence enhancement because it would require Olson’s sentence to run concurrently with his state sentence, instead imposing a top-of-guidelines 108 months to run consecutively with the state sentence. The court expressly said it wanted Olson in the sex offender treatment available in the federal system, because he could not be trusted in the community without “meaningful treatment.”

After this sentencing, the U.S. Supreme Court decided Tapia, saying a sentencing court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation,” because federal law recognizes that prison is not an appropriate means of correction. Olson appealed his sentence.

On appeal, the Eighth U.S. Circuit Court of Appeals agreed that the district court may have considered rehabilitation inappropriately when it decided its sentence. Not only did the district court expressly say it wanted Olson to have access to federal-system treatment, but it expressly rejected a sentence enhancement in order to meet that goal. This would be a direct violation of Tapia, the court said, unlike when a district court merely discusses rehabilitation. And the Supreme Court did not indicate that its decision should be merely prospective. Thus, it remanded the case for resentencing. Judge Benton dissented, arguing that Olson waived the issue by not bringing it up in district court and there was no plain error.

This issue could be helpful for defendants in a wide variety of criminal matters, but as a child pornography possession lawyer, I believe it could be particularly useful to defendants facing child porn charges. Because child pornography cases can be emotional even for judges, those judges may be particularly at risk of handing down sentences that focus on rehabilitation in violation of Tapia. If other circuits follow the lead of the Eighth and apply the ruling retroactively, this could lead to a series of resentencings for defendants given high sentences to start with. Of those, many could be sentence reductions, because Tapia expressly forbade extra prison time intended to accommodate rehab or treatment. As a cyber crime criminal defense attorney, I applaud anything that helps reduce unfairly long sentences.

Continue reading " Eighth Circuit Sends Back Child Porn Case Because Court May Have Considered Rehabilitation – U.S. v. Olson " »

As a criminal defense lawyer in south Florida, I often hear from my clients about arrests in which the police used excessive force. Force is part of a police officer’s job, but it’s also subject to limitations that respect the arrestee’s civil rights. Officers who clearly overstep those limitations can lose their immunity from lawsuits, and that’s what happened to two Orlando police officers accused of excessive use of force in Edwards v. Shanley et al.. Colin Edwards was driving his wife’s car with a suspended license when he was pulled over. Panicking, he ran and was eventually tracked by a police dog, which he claims attacked him for five to seven minutes despite the fact that he had already surrendered. The Eleventh U.S. Circuit Court of Appeals ruled Jan. 12 that the officers were not entitled to immunity from his subsequent lawsuit.

Officer Justin Lovett of the Orlando police attempted to pull Edwards over for failing to stop properly at a stop sign in 2008. Edwards parked, got out and ran into the woods, but didn’t get very far before he decided to surrender by lying down on his stomach with his hands exposed. Meanwhile, Lovett had summoned Officer Bryan Shanley and his dog, Rosco, who led the humans to Edwards. The officers shouted to Edwards to show his hands, and Edwards shouted “You got me. I only ran because of my license.” As he said his, however, Rosco began biting his leg. Edwards alleges in his complaint that this continued for five to seven minutes as he lay there and occasionally yelled “I’m not resisting.” The officers made no move to arrest or instruct him further, but eventually did handcuff him before commanding the dog to release his bite.

Edwards was transported to the hospital, where a doctor said he’d suffered significant muscle and tendon damage from substantial loss of tissue. One of the officers joked that it looked like filet mignon, and that this is why officers do not feed their dogs. Edwards eventually pleaded no contest to felony fleeing a police officer; charges of resisting an officer, striking a police dog and driving with a suspended license were dismissed. He sued both officers, alleging Shanley used excessive force and Lovett failed to stop the attack. The federal district court for central Florida dismissed the case, granting the officers qualified immunity. This appeal followed.

On appeal, Edwards argued that the use of a police dog was itself excessive, but that the officers also violated his Constitutional rights by allowing the dog to continue biting for five to seven minutes “while Edwards pleaded to surrender.” The Eleventh Circuit was more impressed by the second argument. Noting that the record on appeal was scant and a jury might have a more complete picture of the facts, it found that the problem lay in the officers’ choice to let the dog attack continue past the first bite. While officers may have been justified in fearing Edwards before they caught up to him and could see what kind of threat he posed, the court said, they lost the justification after finding him facedown with his hands visible and asking to surrender. Allowing the dog to continue was unnecessary, “gratuitous and sadistic,” the court said, thus clearly violating the Constitution. It reversed the grant of qualified immunity to both officers.

As a Fort Lauderdale driving while license suspended lawyer, I’m pleased that the Eleventh Circuit came to this conclusion. I noticed that Edwards originally faced a charge of resisting an officer without violence and one of striking a police dog. Resisting an officer is a classic example of a charge brought by Florida police when they don’t like the suspect, often on the thinnest of evidence. In this case, the police dog charge likely also serves this function, since the record shows Edwards had no opportunity to strike the dog. As a Miami resisting an officer attorney, I vigorously defend these cases, often by pointing out to prosecutors that the facts are on my client’s side.

Continue reading " Orlando Police Not Entitled to Qualified Immunity From Excessive Force Lawsuit Involving Dog – Edwards v. Shanley " »

An important part of my job as a cyber crime criminal defense lawyer is protecting my clients from the consequences when the law hasn’t caught up with the way technology is used in real life. When laws are applied to situations they don’t quite fit, the defendants can face far more severe penalties than the situation warrants. For example, in United States v. Vadnais, defendant Marc Dennis Vadnais pleaded guilty to knowingly receiving child pornography. The problem was with the sentencing: the south Florida district court enhanced his sentence considerably, finding that because he used file-sharing software, his offense included distribution of child pornography for receipt, or expectation of receipt, of a thing of value.” His final sentence was 20 years in prison. On appeal, the Eleventh U.S. Circuit Court of Appeals held that mere use of file-sharing software did not justify the sentence enhancement.

Vadnais admitted at sentencing that he installed LimeWire, a file-sharing program, and used it to download child pornography. By default, the program was set to share everything he left in the downloads folder, and that’s how law enforcement found him. This made Vadnais eligible for a two-level sentence enhancement for distributing the material. He did not deny that he qualified for that sentence enhancement — but at sentencing, he argued that he did not qualify for the greater five-level sentence enhancement for distribution “for the receipt, or expectation of receipt, of a thing of value.” Caselaw has established that a thing of value can be other child pornography, and that was the allegation in the case of Vadnais. After receiving his sentence, he appealed.

The Eleventh Circuit sided with Vadnais, finding that “logic compels” a higher standard for finding distribution for value than that applied by the district court. In order to apply this enhancement, the court said, there must be direct or circumstantial evidence that the defendant reasonably believed he or she would receive something of value in exchange for sharing the files. The prosecution and the trial court did not deny this, the appeals court noted, but found evidence that Vadnais expected to receive additional child pornography because he did not turn off the file-sharing feature of the software. The Eleventh flatly rejected that argument, finding it didn’t follow from the evidence in the case or the structure of file-sharing software. Peer-to-peer file-sharing programs do not penalize users for failing to share; Vadnais would have had the same access to other people’s files regardless of whether he changed the default settings for his own. The Eleventh noted that facts may show this in other cases, but sent this case back for resentencing.

As a child pornography criminal defense attorney, I am pleased to see the Eleventh Circuit, which includes Florida, join at least two other circuits in requiring real evidence for this sentence enhancement. As the court noted, any user who shares files in a peer-to-peer program is already vulnerable to the same two-level sentence enhancement Vadnais did not dispute in this case, for mere distribution. If the Eleventh had applied the standard prosecutors requested in this case — whether the defendant turned off the default-enabled file-sharing — anyone who qualified for the lower sentence enhancement would also qualify for the higher one. This would make the distinction meaningless. As a child pornography possession defense lawyer, I do not believe that’s what the writers of the sentencing guidelines intended.

Continue reading " Eleventh Circuit Rules Use of File Sharing Software Does Not Qualify Alone for Sentence Enhancement – U.S. v. Vadnais " »

As a Miami-Dade robbery criminal defense lawyer, I was interested to see a recent ruling from here in south Florida about when attorneys may back out of a case because of perceived or actual conflicts of interests. In Johnson v. State, an appellate public defender moved to withdraw from the appeals case of Christopher Johnson because the same public defender was already representing Johnson’s co-defendant, James Mayfield.. The defender’s withdrawal would have required Florida’s Office of Criminal Conduct and Civil Regional Counsel (RCC) to step in, but RCC objected. In this case, the Florida Supreme Court found that RCC has no standing to object to a public defender’s good-faith motion for a conflict withdrawal, but that courts at all levels must review those motions, not just rubber-stamp them.

Johnson and Mayfield had both been convicted in Broward County of robbery with a firearm and carjacking, then appealed the sentence. When the appellate public defender moved to withdraw from Johnson’s defense based on already representing Mayfield, RCC objected. The public defender said RCC had no standing to object, and that there was no need for fact-finding in any case because conflicts are inherent in representing co-defendants. Before the Fourth District Court of Appeal, RCC argued that the defender must show actual conflict, since conflict at the trial level may not translate to the appellate level. The Fourth District ultimately sided with the defender, appointing RCC to represent Johnson. It ruled that the law does not require a fact-finding inquiry into a certified conflict at the appeals level before automatically assigning representation to RCC. It also found that RCC has no standing to challenge a motion to withdraw, since no statute currently authorizes this.

The Florida Supreme Court found that the Fourth District was wrong about conflict cases automatically being assigned to RCC. Though the statute says “regional counsel shall handle the appeal” if a public defender certifies a conflict, it said history and legislative intent have handled it differently. There is no basis in legislative history to assume this, it said, and statutory language governing conflicts outlines a process involving a court inquiry. In fact, it found that this language is not specific to the trial court, and ruled that the appeals court must also review motions to withdraw, as it does other motions. However, the high court sided with the public defender on standing, ruling that RCC has no legal permission to object to such motions. RCC’s duty to represent arises only when a court grants a conflict motion to a public defender, the Supreme Court noted. It is also not a party to the case, which would give it a stronger stake in the outcome. Thus, it agreed that RCC had no standing and no right to be heard in a conflict hearing.

One likely result of this case is that Johnson’s appeal may have been hung up in court for months or longer while the Supreme Court made its decision. While conflicts of interests are an important issue in criminal defense, that may be cold comfort to the defendant who must wait to hear about his fate — and it can be avoided by defendants who choose to hire their own private south Florida criminal defense attorneys. Public defenders do an important job, but they are often given larger case loads than comparable private-sector attorneys. This can leave them poorly equipped to give unusual cases enough attention. As a Fort Lauderdale criminal defense lawyer, I prefer to reduce the volume of my cases, even if that means making less money, so that I have time to give each client the best representation I can.

Continue reading " Courts Must Review Public Defender Motions to Withdraw for Conflict, Florida Supreme Court Rules " »

I’ve occasionally written here about my work as a cyber crime criminal defense attorney defending people accused of illegal file-sharing. As longtime observers of file-sharing and downloads know, the RIAA, the music industry organization, has been pursuing downloaders for some time by filing lawsuits hitting them with very steep fines for allegedly violating copyrights. The movie industry has more recently started doing the same thing, with a slew of lawsuits getting publicity last spring after judges agreed that multiple defendants can be joined in the same file-sharing lawsuit. Now, many clients are starting to come to Seltzer Law for help when they received subpoena notices from internet service providers (ISPs) like Comcast, AT&T or Verizon. These notices are often confusing because they say the ISP has not yet identified you — but it will if you don’t act.

A typical ISP notice like this one says the plaintiff — the company or organization filing the lawsuit, and its law firm — has filed a lawsuit. That lawsuit is usually in Washington, D.C., regardless of where you actually live. The notice goes on to say that you are a defendant in this lawsuit because the plaintiff has identified you as someone who illegally downloaded a movie or shared it with others. The identification is based on your IP address, a unique identification number attached to your computer or the modem you use to get online. Thus, the accusation is really saying that their records show someone using your IP address downloaded the material illegally. That IP address allowed them to trace it to the ISP, which knows which customer uses that IP address.

The ISP is a middleman that is legally required to pass on the information; it won’t defend you. However, you have the right to defend yourself in a few different ways. If you’d like to keep your name from being revealed, you can file to quash or vacate (stop) the subpoena by the date listed in the letter. This is best done with the help of an experienced cyber crime defense lawyer, because he or she is an expert and also to keep your identity secret. If you take no action — a common response to an upsetting letter, but not a good one in this case — your name will be released automatically. Waiting even longer could allow you to lose the lawsuit by default. However, you also have some defenses. In some cases, users are mis-identified by an administrative or technical mistake; in others, the computer or modem was used without permission. You may also be able to move the lawsuit if it was filed in a place where you don’t live or visit regularly.

At Seltzer Law, P.A., our cyber crime criminal defense attorneys have the technical as well as the legal skills to defend these types of cases, and we offer defense to clients across the U.S. as well as here in Miami. If you truly don’t believe you downloaded the material that’s the subject of the lawsuit, we can make sure even if the material may have been deleted or moved, then document the state of your hard drive for the court. These cases do happen. Sometimes, another person in the household used the computer; the modem may also have been used without permission by a neighbor or passer-by. Mistakes finding or recording the IP address can also cause mistakes, sometimes leading to accusations against people who don’t have the technical skills to download anything illegally. And if you would rather pay to settle the case, we negotiate aggressively to reach a reasonably sized settlement, rather than putting up with the high settlement offers that some have termed “shakedowns.”

Continue reading " Seltzer Law Defends Internet Users Slammed With Subpoenas for Alleged Illegal File Sharing " »

An important part of my job as a Miami criminal defense lawyer is helping clients understand the advantages and disadvantages of pleading guilty or going to trial. This is known as a plea deal or plea bargain, and it may be a tough call in some circumstances — but it should always be made by a well informed client who was free of improper interference. That’s why I was interested to see a recent Eleventh Circuit decision vacating a conviction that was wrongly influenced by the judge’s comments. In United States v. Davila, Anthony Davila of Georgia was being prosecuted for conspiracy to defraud the United States, using a scheme involving false tax refunds. The Eleventh found that the magistrate judge should not have essentially advised Davila on his defense strategy.

During a hearing before a magistrate judge, Davila requested the discharge of his court-appointed attorney, complaining that the attorney had not discussed options other than pleading guilty. The magistrate judge suggested that there was no other viable defense, and advised Davila that the only thing under his control was whether he planned to accept responsibility, thus allowing a lowered offense level. The opinion quoted the judge as telling Davila “You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three- level reduction for acceptance, and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.” Davila did eventually plead guilty and receive a sentence of 115 months, more than nine years.

His appeal to the Eleventh U.S. Circuit Court of Appeals argued that these comments were essentially improper participation in the plea discussions. By commenting on the weight of the evidence, Davila argued, the magistrate judge was suggesting that the sentence for a plea would be more favorable than a sentence coming out of a conviction. As a preliminary matter, the court noted that Davila failed to object to this in trial court, so it must review the court’s decision for plain error. Fortunately for Davila, the appeals court found plain error. The Federal Rules of Criminal Procedure expressly say that the court must not participate in plea agreement discussions, with no exceptions. Under Eleventh Circuit precedent, the defendant need not show any actual prejudice as a result; it is enough to show that the behavior was improper. Thus, it vacated Davila’s sentence and sent it back for retrial with a different judge.

Though I certainly handle fraud as a south Florida tax evasion attorney, this case has implications for a wide range of criminal cases. The Eleventh’s ruling reiterates that judges may not step into the plea deal discussion in any way, no matter how well intentioned. Indeed, this magistrate judge may have intended nothing more than to help Davila — but he was violating the law as well as unduly influencing the process. This is not just a technical violation. As the opinion in this case noted, allowing judges to participate in a plea discussion makes their preferences known (or seems to), which tends to change the parameters of the debate, bring the judge’s impartiality into question and possibly coerce the result. As a Fort Lauderdale fraud defense lawyer, I feel that preventing this protects both my clients and the integrity of the case itself.

Continue reading " Eleventh Circuit Vacates Conviction Because Judge Improperly Participated in Plea Discussions – U.S. v. Davila " »

I’ve written on this blog several times about the growing movement to reconsider the harsh sentences handed down in federal child pornography cases. Sentences are set by the U.S. Sentencing Commission, and judges are given limited flexibility to change them, especially if they wish to depart downward and give the defendant a lower sentence than the guidelines warrant. Critics, including south Florida child pornography defense attorneys like me, say the Sentencing Commission’s decisions are overly influenced by politics, which is not well equipped for considering defendants’ rights because politicians know voters may punish them as “soft” on child molesters. That’s why I was pleased to see a passionate, though short, dissent in United States v. Overmyer, a Sixth U.S. Circuit Court of Appeals decision in which the majority upheld a relatively low sentence for transporting child pornography.

Leonard Overmyer originally got into trouble with the law when police traced child pornography downloads to his workplace, a Michigan auto parts manufacturer. No charges were filed, but he was fired. Less than a year later, an Internet service provider tipped off police that downloads were also coming from Overmyer’s home. A search turned up nothing on two computers, but when Overmyer asked to take his car to the mechanic, they grew suspicious and found a third laptop in the car. This one was loaded with about 90 images of child pornography. Overmyer eventually pleaded guilty to transporting child pornography, which has a statutory range of 60 to 240 months in prison. His guidelines range was 87 to 108 months. He moved for a downward variance, citing his remorse, the therapy he sought out alone and the effect of the case on his family. The federal district court declined and gave him the low end of the range, 87 months (seven years and three months).

On appeal, Overmyer argued that the sentence was both procedurally and substantively unreasonable. The Sixth Circuit first dismissed the procedural argument, finding no error in the review the court gave his requests. Indeed, it said, the trial court had taken the effects on Overmyer’s family and livelihood into account when sentencing at the low end of the guidelines. The court spent more time on the substantive reasonableness argument, whch was that the sentence was too long. Sentences within the sentencing guidelines are presumed to be reasonable, the Sixth noted. While Overmyer’s arguments against the sentence might support a lower sentence, the majority said it didn’t have license to consider anything that doesn’t compel a change. Furthermore, the majority said, recent Supreme Court decisions do not permit appeals courts to reverse just because they disagree; the disagreement must be based on unreasonableness. And it’s difficult to establish unreasonableness when the trial court and sentencing commission agree, the majority said.

The dissent by Judge Merritt focused on what the judge saw as the larger picture: “the continued sad dependence of federal judges on a harsh sentencing grid created by a distant bureaucracy.” The dissent heavily cited the Third Circuit’s decision in United States v. Grober, in which the Third upheld a downward departure for a child pornography defendant. The Third found that the sentencing guidelines are flawed and arbitrary, the dissent said. Sentence enhancements apply in nearly every case because they are “essentially inherent in the crime,” that court said, and the prosecutors’ choice of charge largely determines sentencing. As a result, that court found that anything more than the minimum would be unreasonable. The dissent found this compelling and instructive on the flaws of the “child pornography grid.” By rubber-stamping the result when the judge and Sentencing Commission agree, the dissent said, the majority has ignored several other issues and allowed the grid to become “a biblical command.”

As a Miami-Dade cyber crime defense lawyer, I’m pleased to see this kind of reasoning entered in the federal record — even if it did not determine the outcome of the case. As the dissent notes, there are other courts that have expressed dissatisfaction with the harshness and rigidity of the sentencing guidelines. By locking judges into specific sentences or sentence ranges, the guidelines take away in some sense their ability to be judges — to rule on the situation according not only to the letter of the law, but to the full situation. This has consequences for real people, who spend years and years in prison for what the dissent called addictive, nonviolent crimes. In my work an Orlando child pornography defense attorney, I try to eliminate or minimize any federal child pornography charges, because sentencing is a difficult place to seek mercy.

Continue reading " Sixth Circuit Dissent Takes on ‘Unconscionably Harsh’ Sentencing for Child Pornography Cases – U.S. v. Overmyer " »