Cyber Crime Lawyer Blog

As a south Florida drunk driving defense lawyer, I very commonly see people who wonder whether they made the right decision about whether to submit to a blood or breath test. This is always a tough call because Florida law penalizes drivers for refusing to take a blood-alcohol concentration test. This is called the implied consent law, which means the act of driving in Florida can be taken as consent to submit to a breath, blood or urine test; failure to do so means a driver’s license suspension. However, one Florida appeals court has ruled that the language used by some police departments when they explain this to drivers is misleading. This caused the appeal in Nader v. Florida Department of Highway Safety and Motor Vehicles et al., in which Susan Nader refused a breath test and then challenged the DHSMV’s attempt to suspend her license.

Tampa police stopped Nader after they saw her sitting in her car through several light cycles, with only her parking lights on even though it was 1:30 a.m. After she failed field sobriety tests, she was taken for breath testing but refused. This led to an automatic driver’s license suspension, which Nader challenged at a hearing. At that hearing, she argued that the law requires only a breath test, but the officer’s statements required her to submit to a “blood, breath or urine” test. This argument was taken from a 2007 Fourth District Court of Appeal decision, FDHSMV v. Clark, even though Tampa is in the Second District. After losing, Nader appealed to the circuit court, which reluctantly found for her, noting that it was bound by Clark but did not agree with that ruling that the language was confusing. The state petitioned the Second District Court of Appeal for review, and it reversed, expressly disagreeing with the Fourth District. It also found that its own review was proper despite procedural rules limiting its review.

Ultimately, both issues were certified as questions to the Florida Supreme Court for review. The high court found that the “blood, breath or urine” language in Nader’s case did not violate the implied consent law such that Nader’s license may not be suspended for refusing it, but gave its blessing to district courts wishing to grant review to fix precedents they believe misinterpret the law. In its review, it noted that the “blood, breath or urine” language appears in several places in the law, leading to its appearance in a police affidavit used when drivers refuse to take a test — including in Nader’s case. Nader argued that this was inaccurate because she was offered only a breath test. The Second District, splitting with Clark, found that the use of the word “or” plainly suggests a choice, and the high court agreed; it further found no evidence that Nader felt she was obligated to take one of the other two. It went on to give district appeals courts the authority to review administrative decisions where there is a violation of clearly established law and a potential miscarriage of justice.

The dissent in this case focuses on this second issue, which gives appeals courts discretion in an area where the law limits their authority. But as a Miami DUI criminal defense attorney, I’m more interested in the first issue. This decision is bad for Florida drivers who refuse breath tests, who may not now rely on Clark if they try to challenge a driver’s license suspension. As a result, drivers may choose instead to submit to the breath test or find another defense at the administrative hearing, which every driver is entitled to request. You may have a better chance to win at this hearing than you realize, since suspensions can be invalidated by administrative mistakes or civil rights violations. That’s why, as a Fort Lauderdale intoxicated driving defense lawyer, I always recommend that my clients request this hearing if they can.

Continue reading " Florida Supreme Court Rules ‘Blood, Breath or Urine’ Language Cannot Negate Implied Consent Law – Nader v. FDHSMV " »

As a child pornography possession criminal defense attorney, I know my clients often come to law enforcement’s attention after an investigation or charge for a different but related crime. Because of the emotional nature of child porn investigations, some of this information can find its way into evidence even when it’s irrelevant to the charges the defendant ultimately faces, and even into the sentencing. That seemed to be the case in United States v. Goluba, in which the solicitation of a child online led law enforcement to discover child pornography in the home of David Goluba of Arlington, Texas. Goluba pleaded guilty to child pornography receipt charges. Nonetheless, for sentencing purposes, the court did not apply a sentence reduction for only possessing, with no intent to distribute, finding that his choice to send a sexually explicit photo to a ten-year-old in Minnesota supported a finding of intent to distribute.

The mother of the ten-year-old contacted local police when she discovered a sexually explicit chat with Goluba. In one exchange, he called the girl’s attention to his profile picture on the site, which showed him sitting in a chair with the tip of his erect penis visible. In a followup visit from Arlington police, Goluba, 43, admitted to the conversation, possession of child pornography, and other behaviors suggesting sexual interest in children, and a search of his home turned up roughly 31,000 images and videos of child pornography. Goluba fled but was later found and arrested, then pleaded guilty with no plea agreement. He objected to the presentencing report before sentencing, arguing that he merited a two-level decrease because his conduct was “limited to the receipt or solicitation” of child pornography. Prosecutors disagreed, saying Goluba had sent a sexually explicit image to the Minnesota girl and thus his conduct was not limited to possession. The district court agreed.

Goluba appealed to the Fifth U.S. Circuit Court of Appeals, but that court upheld the sentence, finding that his conduct was not limited to receipt of child pornography. Goluba’s argument noted that the picture he called the girl’s attention to did not depict sexual conduct by a minor, but rather, was a sexually explicit picture of himself. Thus, he said, the picture did not disqualify him from the sentence reduction under the language of the sentencing guidelines. The Fifth Circuit found that this put the emphasis on the wrong part of the guidelines. It emphasized the word “conduct” in the guidelines and found that conduct must refer to the totality of his behaviors, not just the charged offense. It cited a case finding that unindicted conduct may be considered as long as it is relevant conduct as defined by the guidelines. Nor do the sentencing guidelines require that surrounding conduct be limited to behaviors related to child pornography, the court wrote.

As a child pornography criminal defense lawyer, I suspect another court could have come to a different conclusion with the same amount of support. The court may be required to honor the caselaw allowing unindicted conduct to be considered, but it viewed the issues in a way that was least favorable to the defendant. For example, Goluba used the sexually explicit image as a profile picture, which means everyone on the site saw it; he “sent” to the girl to the same degree that he “sent” it to everyone else. In addition, the court’s finding that the sentencing guidelines don’t require surrounding conduct to be limited to child pornography conduct, but this is a very loose standard that doesn’t guide district courts on how to apply the sentencing guidelines uniformly and fairly. As a cyber crime criminal defense attorney, I hope other courts have a chance to review this issue and consider it carefully.

Continue reading " Fifth Circuit Affirms Sentence In Child Pornography Case Despite Dispute Over Intent to Send – U.S. v. Goluba " »

Here in South Florida, we have a lot of coastline, much of which faces foreign jurisdictions. As a Fort Lauderdale criminal defense lawyer, I sometimes hear about illegal activities on the sea, including smuggling and illegal immigration as well as less serious charges like boating under the influence. In United States v. McQueen, defendant Kelsey James McQueen was accused of smuggling illegal immigrants off the coast of Palm Beach County, after being caught by federal law enforcement on the water. He pleaded guilty to three counts of attempted alien smuggling and one count of failing to obey an order by law enforcement, but challenged a sentence enhancement for the officers’ use of a firearm. The Eleventh U.S. Circuit Court of Appeals upheld the sentence, finding McQueen’s actions induced officers to fire.

The undisputed facts show that McQueen’s vessel, which was known to smuggle narcotics and people, was spotted by Customs and Border Protection late at night in April of 2010. Patrol boats approached the boat offshore with sirens and lights activated and ordered it to stop, but McQueen fled east. After chasing for three minutes, officers fired two illuminated warning shots and four “pepper balls” (not defined in the opinion). After three more minutes, the officers fired two more warning shots. When this failed to stop McQueen’s flight, the officers boarded the vessel while it was still in motion. Their search turned up 14 alien nationals without permission to enter the United States. McQueen was charged with, and pleaded guilty to, three counts of attempted alien smuggling and one count of failing to obey an officer’s orders. At sentencing, McQueen objected in vain to the application of a sentence enhancement “if a firearm is discharged.” He challenged that enhancement on appeal.

The Eleventh Circuit noted that the sentence enhancement can include discharges “induced” by the defendant, and that it has upheld the use of this enhancement on a defendant who was shot by the person he was attempting to rob. The issue in this case, the court said, is whether McQueen induced the Customs officers to shoot. Using the robbery case, it found that he had. McQueen argued that the officers fired unnecessarily and recklessly and their actions were not a foreseeable response to his flight, but the Eleventh disagreed. By attempting to commit a crime in the first place, then fleeing officers who had turned on lights and sirens and ordered him to stop, the court said, McQueen could reasonably have foreseen that illuminated warning shots could be used to gain his compliance. Thus, it upheld his seven-year sentence.

As a South Florida federal crimes defense attorney, I have concerns about this ruling. McQueen and other defendants cannot predict what law enforcement will do. To hold them responsible for law enforcement’s actions seems contrary to the spirit of the law. The previous case referenced by the court involved a robbery victim who fired after the defendant pulled a gun on him. If the defendant knows the victim is carrying, it’s easy to predict that the weapon might come out in a self-defense situation. By contrast, the Customs officers were not in a life-threatening situation and likely had multiple possible responses to a suspect who flees. This makes it far less predictable that they would choose warning shots. As a Miami-Dade immigration criminal defense lawyer, I would be interested in seeing how future courts rule on this issue.

Continue reading " Eleventh Circuit Finds Sentence Enhancement Valid Because Officers’ Firearm Use Foreseeable – U.S. v. McQueen " »

Not long ago, I wrote on this blog about the reversal of a conviction for a defendant convicted of both possession and receipt of the same child pornography. As a child pornography possession defense attorney, I know prosecutors often see opportunities to get heavy sentences for people in this position because CP crimes are so unpopular with the public, but in this case, the court decided the double conviction violated the Double Jeopardy Clause of the Fifth Amendment. So I was interested to see a Seventh U.S. Circuit Court of Appeals case that came to the opposite conclusion. In United States v. Halliday, the court upheld Scott Halliday’s convictions because he was charged with possession and receipt of two different videos. However, the court did send the case back for resentencing, finding that his original sentence was based on false assumptions by the judge.

Halliday was found by criminal investigators working for the state of Illinois, who found his suspected child pornography through file-sharing software. The computer was at the residence Halliday had shared with his wife and young son until recently; at the wife’s request, he moved in with his mother around the first search. After law enforcement searched and seized the computer a few months later, Halliday was questioned and eventually admitted he was likely responsible for the child pornography found there. He was indicted on two counts of receiving child pornography and one of possession. The receipt counts were for receipt on April 20, 2008 and May 27, 2008; the possession count was for possession between those two dates. The court did not instruct the jury that the same videos could not form the basis for receipt and possession convictions, but it did vote to convict on all three counts. Halliday did not object. At sentencing, the judge went above the government’s request and sentenced him to 240 months.

On appeal, the Seventh Circuit reviewed Halliday’s double jeopardy claim for plain error because he raised the issue for the first time on appeal. The court applied the Blockberger test for double jeopardy, which asks whether each count requires proof of a fact that the other does not. It acknowledged that two to three of its sister circuits have ruled that possession is a lesser included offense of receipt and therefore they cannot be charged together. However, it said, the issue is moot in this case because more than one video formed the basis for Halliday’s conviction. It dismissed Halliday’s argument that the dates on the indictment make it possible that the convictions overlap, saying evidence showed multiple downloads between the two dates. However, it found the indictment deficient and warned prosecutors and judges to be clear in future cases to avoid double jeopardy problems. The court then went on to find plain procedural error in Halliday’s sentencing, because the judge relied on an unrelated case to decide that Halliday felt the crime as “victimless,” despite Halliday having made no such statement. Because this was improper, it remanded the case for resentencing.

As a cyber crime criminal defense lawyer, I’m pleased to see that the Seventh is willing to remand a sentence that was apparently based on conjecture about Halliday’s motives rather than statements he made. As I said, child pornography crimes are unpopular, and even judges may feel strongly enough to make decisions based on assumptions or emotions rather than the record. However, it’s not entirely clear that the multiple downloads of which Halliday was accused were enough to eliminate the danger of double jeopardy, as the Seventh appeared to be saying. Though the evidence apparently included multiple download allegations, there was only one possession charge, which suggests a reference to possession of the video forming the basis for the earlier receipt charge. As a child pornography criminal defense attorney, I would prefer to see this clarified in trial court, even if that means a remand, because freedom from double jeopardy is a basic constitutional right.

Continue reading " Seventh Circuit Finds No Double Jeopardy for Defendant Accused of CP Possession and Receipt – U.S. v. Halliday " »

As a Miami immigration crimes defense lawyer, I was interested to read an appellate decision with a relatively rare victory for the defendant. In United States v. Emiliano Valdiviez-Garza, Valdiviez-Garza appealed his indictment for illegal reentry by an alien who had already been removed. Valdiviez-Garza had successfully defended himself against the same or similar charges in an earlier case, by arguing that he may be a citizen through his father. Because he was not convicted in that trial, he argued that the government was estopped from attempting again to argue that he is an alien. And without that element, the Eleventh U.S. Circuit Court of Appeals noted, there is no crime at issue. The court ultimately decided Valdiviez-Garza was right, saying the valid and final judgment in that case precludes rearguing the issue now.

Valdiviez-Garza’s first illegal entry trial was in 2009. At that trial, he did not dispute the three elements of the crime other than alien status: That he had been removed, but later found in the U.S. without express federal permission. The focus of the trial was on his citizenship, and even the prosecution agreed that there was no cause to convict if Valdiviez-Garza was shown to be a citizen. During testimony, his attorney called an Immigration and Customs Enforcement agent to testify that Valdiviez-Garza’s father’s birth certificate listed Texas as his (the father’s) birthplace. Though Valdiviez-Garza was born abroad, his attorney said, he can still derive U.S. citizenship through that connection. Jury instructions echoed this, adding that in order for a child to be a citizen, the citizen parent must have been physically present in the United States for at least ten years, at least half of them when the parent was older than 14 years old. The jury voted to acquit.

In its opinion, the Eleventh Circuit concluded from the record that the 2009 jury had reasonable doubt as to whether Valdiviez-Garza was an alien. That reasonable doubt is enough to estop the government from making the same argument this time around, it found. Once a fact has been decided by a valid and final judgment, the same parties may not litigate it again in the future, the court said. Thus, the federal government is collaterally estopped from making the argument that Valdiviez-Garza is an alien ineligible for reentry. And because status as an alien is one of the four essential elements of the crime of illegal reentry, the Eleventh said, the government cannot prove its case without arguing that he is an alien. Thus, the district court should have dismissed his indictment, the Eleventh found, and reversed and remanded with instructions to dismiss.

As a Fort Lauderdale criminal defense lawyer, I’m pleased to see this victory for someone caught in the machine that is immigration law. Unlike in other areas of criminal law, there is no right to a public defender in immigration law; defendants must pay for their own lawyers or do without. Because many immigrants come to the United States for economic reasons, some are shut out from immigration appeals for economic reasons; others may not realize they have rights because they come from a country where court proceedings are not usual or not fair. Nonetheless, having an attorney to speak for you can make a big difference in an immigration case (or any other criminal case), in part because a South Florida immigration defense lawyer will simply understand the legal factors better.

Continue reading " Eleventh Circuit Finds Prosecutors May Not Argue Defendant Is Alien After Previous Acquittal – U.S. v. Valdiviez-Garza " »

As a solicitation of a minor criminal defense attorney, I keep a close eye on issues that come up in court that might form the basis of a later appeal. While of course my goal is to keep my client from being convicted, it’s important to pay attention to potential routes of appeal because appeals courts will not hear most issues that are brought up for the first time to them; the rules require defendants to “preserve” issues by bringing them up in some form during the trial. That’s why I was interested to see a Seventh U.S. Circuit Court of Appeals decision in which that court declined to hear arguments on an important issue: whether the “minors” the defendant allegedly solicited online were truly minors. In United States v. Erik Zahursky, the court rejected a second appeal of Zahursky’s sentence, saying while the sentence enhancement at issue may not apply, he hadn’t preserved the issue for appeal.

Zahursky propositioned two alleged teenaged girls online in 2006. One was actually a Secret Service agent; the other was unknown to authorities. After the unknown girl disappeared, Zahursky arranged sex with the agent’s identity and a fictional friend, and was arrested on his way to meet them. He was eventually convicted of attempting to entice a minor to engage in sexual activity online, with sentence enhancements for “unduly influencing a minor” and for a “pseudocount,” both based on his correspondence with the unknown person. He later appealed both his conviction and his sentence enhancement for unduly influencing a minor, and was successful on the second count. In that appeal, the Seventh Circuit found that the sentence enhancement could not apply when Zahursky had never met the unknown person and it was unclear whether she was really a minor. On remand, the court recalculated his sentence from 262 months to 210. Zahursky again appealed, this time arguing that the pseudocount was inapplicable.

He was not so fortunate the second time. The Seventh Circuit explained that federal law requires courts to treat conduct with each correspondent as a separate count, but contains no attempt provision. That means the government must prove each correspondent is a real minor or a law enforcement officer. This was the basis for overturning the sentence enhancement in Zahursky’s first case. His current challenge to the other sentence enhancement rests on conduct with the same person, who still cannot be identified as a minor or officer, the court said. However, the court further said Zahursky waived this argument by failing to bring it up in his first appeal. If he had done so, the court said, it could have ordered a hearing on the evidence to decide this issue. The challenge in his first appeal was narrow, based on a section of the law with a different definition of “minor,” and could not have included the second challenge implicitly, the court said. District courts may entertain new arguments on appeal, but they are not obligated to consider anything other than what is relevant to the issues on appeal. Thus, the Seventh affirmed Zahursky’s new sentence.

This decision is a cautionary tale for enticement of a minor defense lawyers like me and our clients. The Seventh Circuit does not deny that Zahursky may be right; it simply refuses to hear what he has to say. Unfair as this may seem, the court is likely within its rights to decline to hear arguments not raised. (I also suspect, as a cyber crime criminal defense attorney, that the court sees repeat appeals as inefficient and usually a waste of time.) This is why it’s vital to make all potentially useful arguments when you have a chance, even if the court seems unreceptive.

Continue reading " Court Finds Enticement Defendant Waived Argument About Whether Victims Were Minors – U.S. v. Zahursky " »

First of all, I’m proud to announce that Seltzer Law, P.A., has launched four new, redesigned websites that we believe will better serve our clients. At cybercrimesdefense.com, clients and potential clients can learn about our work representing people accused of sex crimes and crimes involving technology and the Internet. At miamidrugdefenselawyer.com, we talk all about drug crimes and their defense, with a focus on South Florida. At miamifederaldefenselawyer.com, we offer information and legal services for clients accused of a federal crime, which includes many online crimes as well as serious offenses likely to be federally charged, such as money laundering or white-collar offenses. Finally, at seltzerlaw.com, I discuss all types of criminal defense law, including topics covered on the other websites as well as others unique to that site.

Second, I’d like to share the appearances I made this past Friday, Feb. 10, on TruTV’s InSession, to discuss the retrial of Jason Young. Young, of North Carolina, is accused of beating his pregnant wife to death. In fact, he has been tried for that crime and acquitted; he is being tried a second time. In my appearance, broken here into two videos, I discuss potential motives and the forensic evidence the prosecution has. As a criminal defense lawyer, I expressed concern that there’s essentially nothing new here and the prosecution should not expect a different result.

I was also fortunate enough to appear on InSesson on Friday, Feb. 10 to discuss the trial of Jerry Sandusky, the former Penn State coach accused of molesting children. I spoke for a few moments, from my perspective as an experienced criminal defense attorney, on whether it makes sense for Sandusky’s defense to keep the trial in State College, Penn., or move it elsewhere in Pennsylvania.

Continue reading " Seltzer Law, P.A., Announces New Client Websites and Television Appearances " »

As a Miami-Dade asset forfeiture criminal defense attorney, I was interested to see a federal appeals case in which the defendant did not lose an asset forfeiture appeal exactly — she was not permitted to challenge the order in the first place. In United States v. Davenport, Juanita Davenport appealed to the Eleventh U.S. Circuit Court of Appeals the dismissal of various claims related to $214,980 seized from a safe-deposit box. Davenport and co-defendants including Orlando Muckle were charged in Georgia with conspiring to possess drugs with intent to distribute. Through Muckle’s guilty plea, the federal government successfully requested forfeiture of the money in the safe-deposit box. Here, Davenport unsuccessfully appealed the denial of her motion to vacate the forfeiture order; the dismissal of her petition to the property; and the denial of her request to vacate for excusable neglect.

Davenport was also charged with making a false statement to law enforcement about the safe-deposit box, and ultimately pleaded guilty to that in exchange for the dismissal of other charges. The dismissed charges included the charge seeking forfeiture of the money. A year later, Muckle pleaded guilty to the drug charges, which did include an asset forfeiture count. Prior to accepting the plea, Muckle denied in writing and at a hearing that he had an ownership stake in the money, but the government nonetheless filed a preliminary order of forfeiture, giving other owners 30 to 60 days to petition the court for their share. Davenport’s attorney, apparently confused, did not petition until well after the deadline, and it was dismissed as untimely. She retained a new lawyer and asked to vacate the order for excusable neglect. The court ultimately declined to do so and dismissed the request as untimely, ordering the entire amount forfeited.

The Eleventh Circuit affirmed in part and dismissed in part, but not in a way that gave relief to Davenport. On her motion to vacate the preliminary order of forfeiture against Muckle, the court found that she had no standing to challenge it in the first place. Third parties may claim interest in property subject to criminal forfeiture, the court said, but their requests are considered only after the POF is entered, and they must be timely. Indeed, federal law does not allow third-party claimants to intervene in the criminal trial, the Eleventh said. In this issue of first impression, it sided with the Second, Eighth and Tenth Circuits, all of which found no right to intervene until the POF is entered and a hearing is called on third-party rights. Thus, it ruled that Davenport had no right to challenge the POF in this case. In addition, it ruled that the notice of the forfeiture hearing — where she would have standing — was adequate even though it was sent to her ex-attorney instead of her current one. Finally, it denied relief for missing the deadline, saying her ex-attorney’s negligence was not excusable neglect.

As a Fort Lauderdale drug crimes defense lawyer, I know courts can be tough about deadlines. Generally speaking, they are reluctant to excuse missing a deadline unless there was a genuine mistake on the court’s part. That Davenport apparently hired a bad attorney was not relevant to the claim (at least to the Eleventh Circuit). She may have a state-court cause of action against the attorney, but she will have to pursue it without her share of the money that was forfeited. Often, in my experiences as a south Florida narcotics criminal defense attorney, courts are not merciful in restitution cases — in part because the law is not written to allow much mercy. That’s why it’s so important to have an experienced, professional defense lawyer advocating for you at every step.

Continue reading " Eleventh Circuit Finds Defendant Lacked Standing to Challenge Asset Forfeiture Order – U.S. v. Davenport " »

I’m proud to announce that I’ll be appearing on TruTV’s In Session this Friday at 1 p.m. Eastern. I will be discussing the Dalia Dippolito case from here in South Florida. If you’re not familiar with this case, Dalia Dippolito was a newlywed from Boynton Beach who conspired with one of her two extramarital boyfriends to kill her husband, Michael Dippolito, allegedly for his money. She was convicted last summer and sentenced to 20 years in prison. I will give my opinion as a south Florida criminal defense attorney about the case and Dalia Dippolito’s appeal. In Session airs from 9 a.m. to 3 p.m.; I’ll be appearing at 1 p.m .

Entrapment defenses are a common issue in my work as a cyber crime criminal defense lawyer. In an entrapment defense, the defendant argues that he or she would not have committed the crime without law enforcement’s actions. Though this defense seems very applicable to cases of online solicitation of a minor, it generally fails in such cases because of the fact patterns involved (and perhaps because the court is unsympathetic to the defense). In United States v. Herbst, the Eighth U.S. Circuit Court of Appeals rejected such an argument by Randall Allen Herbst of Iowa. Herbst was convicted of attempting to entice a minor to engage in illicit sexual activities. In his appeal, he argued unsuccessfully that his right to a speedy trial was violated, he should have been able to instruct the jury on entrapment and the government failed to prove its case.

Herbst chatted online in 2010 with a law enforcement officer posing as a 13-year-old girl named Brooke. Brooke and Herbst discussed sexual topics, and arranged to meet the next day at her local community center. The next day, they talked online again and Herbst asked Brooke to call him, which was arranged with the help of a female administrative worker in the office. When Herbst arrived at the meeting place, he texted Brooke with a request to walk toward the road, and was promptly arrested when he parked. At the sheriff’s office, Herbst confessed that he’d chatted with Brooke and another false persona, but insisted at trial that he was planning only on giving Brooke a ride home. He requested an entrapment instruction, but the district court denied it, saying the evidence did not support it. After his conviction, he asked for a new trial on the grounds that he wasn’t told how long the deputy had been posing as teenaged girls in chats with him, which he said supported the entrapment defense. This was also denied.

On appeal, Herbst argued that the evidence was not sufficient to convict him; that he should have been given an entrapment instruction; and that the new evidence required a new trial. All of these arguments failed. On the evidence argument, he said prosecutors did not show he had performed a substantial step toward completing the offense of enticement of a minor, because he had not stopped at the meeting place or prepared for a sexual encounter, and had another reason to be in the area. However, the Eighth Circuit said, driving toward a meeting place meets the requirements of the offense, and Herbst also texted Brooke with instructions that would allow him to pick her up. Furthermore, it found that Herbst was not entitled to an entrapment defense because he showed a predispostion to commit the crime; he initiated sexual discussions with both false teens and suggested activities. Finally, the Eighth ruled that the disclosure of the new evidence — that Herbst had talked to the false personas two months earlier than the officers had testified at trial — was unlikely to lead to acquittal in a new trial.

As a solicitation of a minor criminal defense attorney, I warn my clients that entrapment is a difficult defense to use. As the Eighth laid out in this decision, defendants must be able to show that they had no predisposition to commit the crime, as well as that the law enforcement inducements were the main reason they did it. The predisposition issue in particular is difficult because it requires defendants to prove a negative and can be overcome by any previous history or even prior accusations of crimes involving children. Law enforcement is well aware of this, of course, and takes steps to ensure that defendants cannot use it during this kind of “sting” operation. In my work as an enticement of a minor lawyer, I consider those and other facts before I advise my clients on how to proceed.

Continue reading " Eighth Circuit Upholds Conviction for Attempting to Entice a Minor Over Entrapment Argument – U.S. v. Herbst " »

As a south Florida drug crimes defense lawyer, I was interested to see a recent conviction of a doctor accused of over-prescribing the kinds of controlled substances widely abused in our state’s “pill mills.” In United States v. Ignasiak, Robert L. Ignasiak, Jr., appealed his convictions for health care fraud and violations of the Controlled Substances Act. Ignasiak was a medical doctor until the charges, which alleged that he prescribed pills with no legitimate medical purpose or in excessive amounts. The prescriptions at issue were for a total of 20 patients, two of whom later died. He was sentenced to more than 24 years in prison and appealed on several grounds, including that he was deprived of his constitutional right to confront witnesses when autopsy reports and medical notes were admitted without testimony from their authors. The Eleventh U.S. Circuit Court of Appeals reversed in that ground.

Ignasak operated his own busy clinic in the Florida Panhandle. He came under scrutiny because the federal government felt he was billing higher amounts than normal for a family-practice doctor. However, a review of the records raised the auditor’s concerns that Ignasak was prescribing significant amounts of narcotic painkillers for most of his adult patients, along with drugs less likely to lead to abuse. Ignasak retired later that year and sold his clinic. The new doctor also became alarmed at the number of narcotics prescriptions in the practice, especially after discovering that patients would be visibly angry when he declined to write new prescriptions. The government eventually seized all the patient files and prosecuted Ignasak on 54 total counts. At trial, over Ignasak’s objection, the court allowed introduction of autopsy records in patient deaths (including seven not charged but admitted into evidence) and handwritten medical notes despite no testimony from their authors. After his conviction, he appealed.

While the Eleventh Circuit upheld the trial court’s decision as to the sufficiency of the evidence, it agreed with Ignasak that the authors of the documents should have testified. It first found that the autopsy records were testimonial evidence subject to the constitution’s Confrontation Clause because they are forensic records, on which the Supreme Court has called for more scrutiny because of their scientific nature. Thus, the testimony of the area’s chief medical examiner is not a constitutionally adequate substitute for the testimony of the autopsy reports’ actual authors (where they were different people). Under the Confrontation Clause, Ignasak should have had the right to confront and cross-examine his accusers. Furthermore, the Eleventh found that the error was not harmless — that is, it wasn’t confident that the “powerful” evidence of the extra autopsy reports did not contribute to the verdicts. In light of the fact that the government’s case was not overwhelming otherwise, the court vacated the conviction and ordered a new trial.

As a Miami criminal defense attorney, I’m pleased to see that this case will get a new trial. The constitutional right to confront one’s accuser is so fundamental that denying it denies the defendant a fair trial in the first place. Consider the possibility that some records admitted as testimony could have been produced by someone who was not reliable — for example, because of simple negligence, substance abuse or conflicts of interests. When this is the case, a jury seeking to make the best possible decision needs to know about the problem so it can fairly judge whether the evidence shows the defendant’s guilt. The precedent established here by the Eleventh Circuit will benefit all the clients I take on as a Fort Lauderdale drug crimes defense lawyer, as well as any other criminal defendant in Florida.

Continue reading " Eleventh Circuit Vacates Doctors Conviction for Dispensing Controlled Substances – U.S. v. Ignasiak " »