Articles Posted in Sex crimes and internet crimes

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In U.S. v. Bailey, defendant appealed his convictions for sexual exploitation of a child and possession of child pornography in violation of 18 U.S.C § 2251(a) and 18 U.S.C § 2252A(a)(5)(B) respectively. He argued that the indictment was insufficiently clear and that there was insufficient evidence to support his conviction on one of the counts.

After a bench trial, the district court made findings of fact that defendant video recorded the child victim after living her note instructing where and when to masturbate. He was seen in one recording giving the victim money in order to induce her to masturbate. He is also heard in the recording, telling her that she had better hurry up and masturbate.

First he challenges the sufficiency of the indictment. Bailey concedes that his challenge is made for the first time on appeal, and therefore the court of appeals review is limited. His challenge has two parts. First is count one through four. He argues that the language of each of said counts is identical with the exception of the time frame during which the alleged crime occurred. Because there was overlap in those time periods, he argues that he had insufficient factual information to tell which count charged the crime depicted in Government exhibits, he argues that he had insufficient notice to prepare his defense and also that he would be unable to invoke the protections of double jeopardy in the event of a future prosecution. The court of appeals rejected his arguments because it can prevail only if he could show he suffered actual prejudice as a result of the indictment and he cannot do this. He knew precisely which of the four video images were charged in each count. The images on each of the four Government exhibits were distinctive, and readily distinctive from the others and he will have no trouble obtaining double jeopardy protection in the event of any future prosecution.
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In U.S. v. Kopp, the defendant registered as a sex offender in the Northern District of Georgia, and then moved to Daytona Beach, Florida, where he failed to update his registration. A grand jury then indicted Kopp in the Northern District of Georgia for failure to register as sex offender. Kopp moved to dismiss the indictment for improper venue. The federal court denied his motion. Kopp then conditionally pleaded guilty. Later he violated his supervised release, and federal court sentenced him to 16 months of imprisonment.

Kopp was convicted in a court of Hungary for “Rape of an Individual Not Older than Twelve”. As an American citizen he requested a transfer under the Convention on the Transfer of Sentenced Persons, Council of Europe. United States Parole Commission required him to serve his prison sentence followed by a term of 36 months of supervised release. Kopp was certified as a sexually dangerous person required to register as a sex offender. Kopp begun his term of supervised release in the Northern District of Georgia. Kopp probation officer directed him to complete a sex offender registration, and he updated his registration in Georgia until December 2011. In 2012 Kopp removed the electronic monitoring device that he wore as a condition of his supervised release and left the halfway house in Georgia where he resided. A month later police officers encountered him in Daytona Beach, Florida. Kopp never registered as a sex offender in Florida, nor did he inform the authorities in Georgia that he was moving to Florida.

Kopp was taken to Northern District of Georgia where he was indicted for failure to register as a sex offender. He moved to dismiss the indictment for improper venue. He argued that venue did not lie in Georgia because he failed to register in Florida. The District court denied the motion. The district court sentenced him to 18 months of imprisonment followed by three years of supervised release.
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In U.S. v Watkins, the defendant appealed the court’s denial of his motion to suppress evidence in violation of the Fourth Amendment obtained by the government as a result of a warrantless search of his computers and its denial of his motion for reconsideration and to reopen the evidentiary hearing. On October 24, 2009, three days after a girl body was found in a Georgia landfill, and detectives visited Watkins for permission to search his computer; he agreed. Later that day, Watkins agree to meet with a detective from the Clay County Sheriff’s office where Watkins expressed a willingness to help in any way he could about the disappearance of the girl. As the interview progressed, Watkins stated that he had used LimeWire to download and view child pornography approximately one hundred times. The detectives assured Watkins that he was not searching for his child pornography but only for clues to the girl’s murder and stated “I am not worried about your files and all that kind of stuff. I’ve got my own private stuff on my computer, you know what I am saying?” Watkins subsequently read and signed a voluntary consent form authorizing full search of his computers.

The Detective and an evidence technician went to Watkins home to meet Mrs. Watkins, explained that Watkins had signed a form consenting to a search of the computers in the home and asked for her consent to search the computers as well. She agreed, although she later claimed that she did so with the understanding that the search was limited to the murder investigation and the website the children had visited. The consent form signed by Mrs. Watkins was identical to the one Watkins had signed at the Sheriff’s office. Watkins who was present did not register any objection or reservation while officers sought and obtained Mrs. Watkins’s consent to an unlimited search of the computers. After the forensic analysis found evidence of child pornography, the evidence was used to charge Watkins with receipt of child pornography by computer over the internet. Watkins moved to suppress the evidence from the computers. A magistrate judge held a hearing and recommended denial of the motion. It reasoned that the detective’s assurances about the scope of the search had limited Watkins consent to evidence relevant to the murder investigation, but that Mrs. Watkins consent authorized a general search and therefore permitted discovery of the child pornography evidence. The search was valid because, Mrs. Watkins consented to a full search of the computers, and Watkins failed to show that the search violated his rights under Randolph. The district court upheld the magistrate’s recommendation concluding that Watkins had “not actually expressed a refusal to consent to an unlimited search of the computers” as Randolph required; instead, “he consented to the detective’s request for a search that was implicitly limited… to certain of the computers.” He was charged under 18 U.S.C. § 2252 for receipt of child pornography over the internet.

The district court and denied Watkin’s motion for reconsideration and for a new evidentiary hearing before the district court. The district court subsequently conducted a bench trial on stipulated facts and found him guilty of the charged offense.

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In U.S. v. Vandergrift, the defendant was placed on three years of supervised release after serving a 97-month sentence for the federal crime of possession and distribution of child pornography. Before the expiration of a three year supervised release, Vandergrift’s probation officer filed a petition seeking revocation of his supervised release charging that he violated the following conditions of his supervised release: (1) failing to obtain lawful employment; (2) failing to obey instructions to search for and obtain employment; (3) knowingly giving false information to a probation officer when questioned about the whereabouts of another federal supervisee; (4) possessing or having access to a pornographic DVD and a Maxim magazine, both of which contained sexually stimulating material; and (5) violating 18 U.S.C.§ 1001, when he knowingly lied to a probation officer about his roommate’s absence. The district court revoked Vandergrift’s release and imposed an above-guidelines sentence of 24 month imprisonment to be followed by one year of supervised release.

In revoking supervised release, the court considered the safety of the public, the example set to others in deterring similar conduct, punishment for the crime that was committed, and the court also considered what was best for Vandergrift as a factor.

Having considered all of these, the sentence imposed was 24 months in prison, the maximum under statute hoping that during the period of imprisonment “something can be found to put him on a better course.”

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After a brief hiatus, please find this Miami’s defense attorney’s latest entry, summarizing a recent opinion from the 11th Judicial Circuit. The opinion touches on topics and practice areas relevant to the Swartz Law Firm’s scope of expertise, including sex offenses and internet crimes.

In U.S. v. Slaughter the defendant appealed his conviction for use of the internet to entice a minor to engage in sexual activity (18 U.S.C. §2422(b) and committing a felony involving a minor while being required to register as a sex offender (18 U.S.C. §2260A). Registered as a sex offender, he went on Craig’s list and responded to a post by a 14 year-old girl named Hanna seeking someone to buy alcohol for her and some friends. Hanna turned out to be an FBI agent. After a flurry of emails Slaughter began expressing an interest in a sexual encounter with the two girls and suggested they rent a hotel room. Knowing they were underage, he made plans to meet them at a specific hotel. On the arranged date, agents arrived at the hotel room and without an arrest warrant or a search warrant, they entered his room, tackled him, and told him they intended to search his room and car. Later, he was taken to the county sheriff’s office where he was read his rights pursuant to Miranda. He signed a waiver and admitted to trying to entice the girls to meet him at the hotel room by his emails.

Slaughter moved to suppress post-arrest statements made at the sheriff’s office following the warrantless entry into his hotel room. The 11th Circuit found the statements to be admissible even though the police had previously entered his hotel room illegally and arrested him. Additionally, the 11th Circuit found the facts similar to the Supreme Court decision in U.S. v. Harris where police illegally entered a defendant’s home and arrested him on probable cause he committed a murder and later at the police station he waived Miranda and gave a statement. The Supreme Court found the exclusionary rule does not apply to the statements. Here the police had probable cause to arrest Slaughter, his Miranda rights were read and he voluntarily gave his statement under these circumstances, though the earlier pre-Miranda statement was suppressed the post Miranda statement was not subject to the exclusionary rule.

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In U.S. v. Laist, FBI agents traced child pornography images to a computer used by Laist, a University of Georgia student. They paid a visit to the student’s residence to ask him for consent to view his computer. Laist then provided the agents with consent to look at the computer and gave the agent his username and password. The agent concluded that there was child pornography on the computer and asked Laist if he could take it to the FBI office for further analysis. The agent was convinced it contained child pornography. Laist gave consent of the agent to take the computer for further examination but asked for and received permission to copy documents he needed for school. The computer was taken on March 4, 2009, and on March 11, 2009, Laist’s attorney sent a letter revoking his consent. The letter was received on March 12, 2009. Once this notice was received, the FBI agent who seized the computer began the process of drafting a search warrant application by preparing the affidavit. The warrant affidavit and application were completed and submitted to the Magistrate judge on April 7, 2009, but the magistrate judge did not issue a warrant until April 13, 2009. Ultimately the agents found the computer contained child pornography images and Laist was charged in federal court with possession of child pornography.

The issue was whether it was reasonable for the FBI to wait 25 days to prepare the search warrant application while holding Laist’s computer based on probable cause. The 11th Circuit found the 25 day delay was not unreasonable. Laist’s possessory interest in the content of the computer was diminished for several reasons. First, Laist was able to remove whatever files he needed. And he had an opportunity to copy what he needed. Though he revoked consent he did not request additional files. Furthermore he admitted there was child pornography on the computer.

The government still obligated to diligently obtain a search warrant. The 11th circuit upheld the district court’s finding that the agents did act diligently by finding that the agent put the ball in motion the very first day he received notice Laist revoked his consent. The agent began writing the affidavit on the March 10 and submitted his first draft to the US attorney 10 days later. The court noted findings by the district court: that the agent put considerable effort into preparing the affidavit which contained valuable information about how theses crimes are committed such as an explanation of the peer-to-peer file sharing used to distribute the child pornography; that it contained extensive information about the defendant’s conduct including descriptions of how the Innocent Images National Initiative conducted several online undercover sessions; and that the affidavit did not contain a whole lot of boilerplate. In the weeks following the AUSA and the agent exchanged drafts. Furthermore, the investigation took a year and involved numerous agents. The government sufficiently showed diligence. Under the totality of the circumstances the facts show the government’s delay was reasonable.

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In U.S. v. Smith, the 11th Circuit found no Fourth Amendment search and seizure violation. Smith was charged with receiving and distributing child pornography in violation of 18 U.S.C. 2252(a)(2) and (b)(1) following the discovery of child pornography on a computer found in his home. Smith moved to suppress the computer contents from admission at his federal criminal trial. He also moved to suppress statements on the grounds the officers conducted a warrantless and uninvited entry into the house and the evidence should be suppressed as the fruit of poisonous tree. After the motion was denied, Smith entered a conditional guilty plea allowing him to appeal.

Here are relevant facts. ICE officers operating on a tip that Smith has child pornography on his computer went to his duplex apartment to speak with him. No one answered after officers knocked and then pounded on the door.

Through windows the officers saw mound of beer cans and a laptop computer in the living room. They smelled a foul odor from Smith’s apartment, which one detective thought was similar to that of a decomposing body. A neighbor told them he had to be home because she saw him the previous evening and his car was in driveway. The neighbor expressed concern that he was not answering the door and asked the officers to check on him and she told one of the officers that Mr. Smith was feeling some sort of depression and was not acting right. The officers determined they should conduct a “welfare check” and enter the home through an unlocked sliding glass door to ensure Smith’s well-being. As they moved through the house they heard a moaning or groaning sound and found him in his bedroom lying on a mattress. After he told them he was okay they told him they were there to speak with him. Smith said he would talk with them outside. The officers left the apartment and met with Smith outside where they asked him questions about child pornography on his computer. When officers asked him if they could look at his computer, he agreed and let them back in the house. The officers found suspicious files on his computers. After some time, he signed a consent form allowing the agents to search his home. He then consented to the police taking items back to the station to examine. They asked and he agreed to return to the station with them for questioning. At the station he was given Miranda warnings. He then confessed to downloading child pornography and making it available for upload via a peer to peer file sharing program.

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In U.S. v. Daniels the 11th Circuit took up the issue of whether a conviction under 18 U.S.C. 2422(b) requires the government to prove that the defendant knew the victim was a minor. The statute makes it a crime for someone to use any interstate of foreign commerce to knowingly induce, entice, or coerce any individual who has not reached the age of 18 to engage in prostitution or any illegal sexual activity. Daniel was charge with persuading, inducing, enticing, or coercing a girl under the age of 18 to engage in prostitution in violation of section 2422(b) and with knowingly transporting the girl across state lines to engage in prostitution. Daniels, a pimp, drove to Miami with a woman named Head, to engage in prostitution. After arriving in Miami they met a girl (A.W.) on the street who was then 14 years old. They convince her to work as a prostitute for Daniels. Head explained the details of working for Daniels what to charge for certain services how to act with a trick. There was no mention about her age. When trouble began between the two prostitutes, Daniels decided to sell A.W. to another pimp for $200. He took her to a bus station in Miami where she boarded a bus bound for Memphis, Tennessee, where she worked truck stops for the pimp who bought her.

Sending A.W. to another pimp was enough proof Daniels induced her.

Daniels’ federal criminal defense attorney argued the evidence was insufficient to convict of a violation of 18 U.S.C. § 2422 because no reasonable jury could have found that he persuaded induced enticed or coerced A.W. to engage in prostitution because she was already a prostitute in Miami. The fact that she was already working as a prostitute when she came to work for him is not sufficient evidence to conclude that he persuaded her to be a prostitute. The 11th Circuit found that Daniel’s actions in arranging to sell her to another pimp and putting her on a bus so she could reach him falls within the definition of induce.

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In U.S. v Woods the defendant was charged with violating federal child pornography laws. In his defense he raised Constitutional challenges under the Fifth Amendment and Sixth Amendments for failure to advise him pursuant to Miranda v. Arizona and he challenged the law the under the Due Process Clause for being vague and overbroad.

Woods was a Navy serviceman when his ex-wife found child pornography on his computer that she took when she moved out. As any ex-wife would do, she turned it over to law enforcement. In this case it went to the Naval Criminal Investigative Services, who sent investigators to his workplace at Ft. Gordon to speak to him. He was escorted by his chief to a room where the investigators were waiting but he was not arrested nor did they tell him he was in custody. Before questioning he was given a military waiver of rights (Fifth and Sixth Amendments) form which he signed. Woods did not ask for an attorney. After signing he admitted to viewing child pornography on his desktop at home but received it inadvertently. He was interviewed a second time. Prior to signing a waiver, he was not told he was under arrest nor was he restrained. He gave a statement that he has searched for and downloaded hundreds of images of child pornography, that he used it for arousal, and admitted incidents of molesting his niece.

1. Motion to Suppress denied.

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Again the 11th Circuit addressed a common sentencing issue facing Miami federal criminal courts as well as federal courts nationwide: whether a prior offense is considered a crime of violence under the sentencing guidelines. Defining a crime as a crime of violence will determine whether a defendant will receive an significantly enhanced sentence as a career offender or an armed career criminal. In U.S. v. Cortes-Salazar, the 11th Circuit addressed a recurring sentencing guidelines question facing federal criminal courts in Miami and around Florida: whether a prior offense is considered a crime of violence under the sentencing guidelines. How a crime of violence is defined can determine whether a defendant is sentenced as a career offender or as an armed career criminal and the sentence enhancement imposed is very significant. In this case, the definition of a crime of violence meant a significant enhancement for a defendant convicted of reentry after deportation. Here, Cortes-Salazar appealed his 57 month sentence for illegal reentry. His sentence had been enhanced 16 levels under the sentencing guidelines because the sentencing court determined that a prior Florida conviction for a lewd assault act was a crime of violence under the sentencing guidelines provision 2L1.2. In his challenge he claimed his prior conviction did not qualify as sexual abuse of a minor and, therefore, was not a crime of violence. The 11th Circuit disagreed and found it did qualify as a crime of violence for the following reasons.

Under the applicable sentencing guidelines provision 2L1.2, a prior conviction for a crime of violence requires a 16 level enhancement of a defendant’s offense level. The guidelines define a crime of violence to include among other offenses, the sexual abuse of a minor. The 11th Circuit decided in tow earlier cases that prior convictions for sexual abuse of a minor were found to be crimes of violence. In U.S. v. Padilla-Reyes the defendant was convicted of the same Florida offense of sexual abuse of a minor. At the time Padilla Reyes was decided, the guidelines enhanced the sentence for an aggravated felony, which included in its definition the crime of sexual abuse of a minor. The 11th Circuit applied Padilla Reyes to the amended version of the guidelines which enhance a reentry after deportation for having a crime of violence. In U.S. v. Ramirez-Garcia the 11th Circuit again held that the defendant’s prior conviction of “taking indecent liberties with a child” constituted “sexual abuse of a minor” and therefore fell under the guidelines definition of a crime of violence. The Ramirez-Garcia court rejected the defendant’s argument that the prior offense should be interpreted by its plain meaning and found it fell under the definition of a crime of violence.

Cortes-Salazar tried to persuade the 11th Circuit that under the analysis used by the Supreme Court’s decisions in Johnson v. U.S. and Begay v. U.S., the 11th Circuit was required to find this prior was not a crime of violence. Unfortunately, the Supreme Court decisions interpreted the definition of violent felonies under the Armed Career Criminal Act, which differed from the definition of crime of violence given in the the sentencing guidelines.