CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

September 26, 2009

NEVER, EVER TALK TO POLICE WITHOUT A LAWYER

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , — johntfloyd @ 4:45 pm

Recent Terrorism Related Arrests Illustrate Need to Consult Lawyer Before Interviewing with Law Enforcement

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This legal maxim is rooted in the very soul of every criminal defense attorney. Even if an individual is innocent, no one should ever talk to the police once the police make it clear they are investigating a crime, or a potential crime, and they feel the individual has either some involvement or knowledge about the crime. This advice is especially true when it comes to the FBI whose agents are skilled in the art of interrogation and proficient at tricking a person into making a false statement.

This FBI strategy was recently highlighted in a suspected al-Qaeda terror plot involving Najibullah Zazi, a lawful permanent resident of the United States who hails from Afghanistan. News media reports, based on official accounts or leaked accounts by the FBI, have linked Zazi and at least three other Denver-area men, along with a number of suspected or unknown individuals in New York and other cities in the United States, with an alleged al-Qaeda plot to use hydrogen peroxide bombs carried in backpacks to attack New York City’s mass transit system or other mass transit systems in this country.

(The following fact pattern is taken from FBI affidavits, which are notoriously one-sided, and news reports and may be incorrect, misleading or wrong. These men are presumed innocent and the use of these facts in this article is for illustrative purposes only.)

Zazi and his father, Mohammed Zazi (a naturalized U.S. citizen from Afghanistan), and a New York City imam named Ahmad Wais Afzali (also a lawful permanent U.S. resident from Afghanistan) were arrested on September 19, 2009 by the FBI for allegedly making false statements to federal agents in violation of 18 U.S.C. Sec. 1001(a)(2). The “false statement” charges indicated that the FBI, and Homeland Security agents, had not yet compiled enough evidence to bring terror-related conspiracy charges under 18 U.S.C. Sec. 371 or specific acts of “international terrorism” under 18 U.S.C. Sec. 2331(1) against anyone they suspect were involved in the alleged New York City mass transit terror plot. The government has since indicted Najibullah Zazi on terrorism related charges. (more…)

September 23, 2009

COURT TAKES HARDLINE STAND IN CHILD EXPLOITATION CASE

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 9:53 am

Video Taped Consensual Sex with Minor Gets Federal Time

By:  Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The federal statute that governs the production of child pornography provides, in part, that “any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e) . . . if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means . . . .” 1/

Most people think of the production of child pornography as child molesters collecting large quantities of the material for their own perverse use or as “smut peddlers” producing the material for profit on the black market. But the statute has the ability to reach into an individual’s bedroom and ensnare him in a web of serious legal consequences if he has consensual sex with a minor and records the event on a video camera.

That is what happened to 28-year-old Rubio Gadea Pliego in September 2006 when he invited four young males, including a 14-year-old, to his Minneapolis apartment for a party. 2/ During the course of the party, Pleigo performed consensual, although illegal, oral sex on the 14-year-old minor. Two days later Pliego called the minor and invited him, as well as the other young men, back over to his apartment for yet another party. This time, however, Pliego had secretly set up a video camera in his bedroom to record some of the party’s activities.

The camera recorded the three of the young men, including the minor, entering Pliego’s bedroom where they voluntarily watched porno movies. At some point the other two young men left the room leaving the minor alone with Pliego in the bedroom. The hidden camera then recorded the two engaged in a series of consensual sexual activities. (more…)

September 21, 2009

LIFE WITHOUT PAROLE FOR JUVENILES ELIMINATED

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 11:59 am

Texas Takes Small First Step Towards Humane Treatment, Punishment for Youthful Offenders

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Texas Criminal Defense Lawyers Association (TCDLA) releases every two years after each session of the Texas Legislature a summary of new or amended laws enacted during the legislative session. This year Kristin Etter (TCDLA’s Voice of the Defense) has provided this continuing education service from TCDLA to criminal defense attorneys throughout the state. It is not only a continuing education service but an invaluable research tool as well. This blog over the next couple months will feature in depth articles about the most significant pieces of legislation that emanated out of the 2009 Texas Legislature and their potential impact on the state’s criminal justice system with special appreciation to the TCDLA.

For example, one of the most significant changes in our laws was the Legislature decision to eliminate life without parole for juvenile offenders who are certified as adults under Texas Penal Code § 54.02 and tried for capital murder under Texas Penal Code § 12.31. The Legislature amended the Texas Government Code § 504.145 to allow for parole eligibility for juveniles tried as adults after a period of 40 years.

This legislation is significant because the U.S. Supreme Court in two consolidated Florida cases, Terrance Jamar Graham and Joseph Sullivan, both of whom received life sentences without the benefit of parole, has decided this term to decide the issue of whether life without parole for juveniles tried as adults is unconstitutional as being cruel and unusual punishment under the Eighth Amendment. At age 16, Graham was convicted of being an accomplice to an armed burglary and attempted armed robbery—the only criminal offenses he had ever committed in his life—and sentenced to life without parole. At age 13, Joe Sullivan was convicted of a rape committed following a house burglary and sentenced to life without parole with there being serious doubts about whether Sullivan was the actual rapist.

As of July 2009, the Washington, D.C.-based The Sentencing Project (Nellis, Ashley and King, Ryan S. No Exit: The Expanding Use of Life Sentences in America) reported that there are 140,610 individuals serving a life sentence in the nation’s prison system (one in every 11 prisoners). Of those lifers, 6,807 of them are juveniles tried as adults with 1,755 (or 25.8%) of them being juvenile life sentences without parole (JLWOP). (more…)

September 17, 2009

DISTRICT ATTORNEY’S OFFICE DOESN’T CARE IF CYNTHIA CASH IS ACTUALLY INNOCENT

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 11:02 am

The Philosophy of Convict at any Cost Continues in Harris County

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Dr. Patricia Moore is the former associate medical examiner in Harris County. The Houston Chronicle (Sept. 14, 2009) reported that the doctor has been “repeatedly disciplined for failing to follow procedures and for favoring the prosecution in 1998 and 1999” in child death cases.

During Dr. Moore’s tenure with the Harris County Medical Examiner’s Office, she conducted a number of autopsies in children’s deaths whose results have been challenged as not being medically accurate. One of those autopsies involved the 1998 death of a 4-month-old baby, who died in the care of a babysitter named Cynthia Cash, and led the Harris County District Attorney’s Office to file criminal charges against Cash.

Ken Cash, the babysitter’s husband, recently told the Chronicle that “they [District Attorney’s office] railroaded her in that autopsy report. She is innocent.”

Ken Cash’s claim of innocence for his wife recently gained significant support after it was recently discovered that the Harris County Medical Examiner’s office in February 2008 revised the autopsy that served as the genesis of the criminal charge filed against Cynthia Cash and the subsequent prison sentence she received.

According to the Chronicle, the new autopsy report changed the cause of death from “homicide” to “undetermined” and also added that it found no evidence of trauma.  This assertion was given credence by Dr. Richard M. Hirshberg, a neurologist expert who reviewed the 2008 revised autopsy report. Hirshberg, who testified at Cash’s trial as a defense expert witness that he had found none of what the Chronicle called “classic signs of  shaken baby syndrome,” told the newspaper for its September 14 article: “It’s my firm belief now as it was during the Feb. 5, 1999, trial that [Cynthia Cash] is innocent.” (more…)

September 10, 2009

SEX TOURISM: AN INTERNATIONAL DILEMMA

Filed under: Child Abuse Crimes Lawyer — Tags: , , , — johntfloyd @ 11:41 am

Federal Initiatives Aimed at The Continuing Problems of Human Trafficking , Sex Slavery and Exploitation of Children

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

It was called “Operation Twisted Traveler”—a joint law enforcement initiative between the U.S. Justice Department and U.S. Immigration and Customs Enforcement (ICE) that targeted American citizens traveling to Cambodia to have sex with children. Last month, the Justice Department announced the arrest of three American men charged with traveling to Cambodia to sexually abuse children. All three of the men were allegedly previously convicted of sex offenses involving children.

Los Angeles’ Assistant U.S. Attorney Thomas P. O’Brien issued a statement to the news media, saying: “The men charged in this investigation apparently thought they could pursue their abhorrent desires by leaving the United States to prey on children in another country, but they were sadly mistaken.”

The three men were charged under a federal statute titled “Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act,” which is more commonly known in the legal community as the “PROTECT Act.” 1/ The statute was enacted on April 30, 2003, and provides that any United States citizen who travels to a foreign country to engage in “illicit sexual conduct” with another person shall face a fine and be subject to imprisonment up to 30 years. The PROTECT Act defines “illicit sexual conduct” as a sex act with a person under 18 years of age that would be a violation of a federal law in the United States or any commercial sex act with a person under 18 years of age. 2/

In addition to the PROTECT Act, there are three additional federal statutes that govern human trafficking and sex tourism: 18 U.S.C. §§§ 2421, 2422, and 1591. Like the PROTECT Act, § 2421 covers interstate and international sex trafficking, generally requiring actual travel across a border, and carries a maximum penalty of 10 years. § 2422 prohibits enticing or coercing a person to travel across a state line or international boundary in order to engage in prostitution or other unlawful sexual activity, and carries a maximum of 20 years. § 1591 prohibits the enticing, recruiting, or obtaining a person to engage in commercial sex acts or to benefit from such activities, and is punishable up to life in prison. 3/ (more…)

September 7, 2009

RACE AND RELIGION: THE STARTING POINT OF TERRORISM INVESTIGATIONS

Filed under: Anti-Terrorism Lawyer — Tags: , , , , , , — johntfloyd @ 6:31 pm

Religious and Racial Profiling Justified in McCarthy Era Inspired Investigations and Tactics

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The September 11, 2001 Al-Qaeda attacks on the Twin Towers in New York City, and the reaction to those terrorist attacks by President George Bush’s administration, left this nation with a tragic and despicable legacy that has tarnished our great Country’s reputation and image worldwide. One part of this legacy was the government’s voluntary interview program that used race and religion as the primary factors for initiating contact with individuals which continues to be fueled by the faulty premise that these two factors create “suspect communities” from which real and suspected “terrorists” could be found.

The ACLU and The Rights Working Group’s 2009 follow-up report to the United Nation’s Committee on the Elimination of Racial Discrimination titled “The Persistence of Racial and Ethnic Profiling in the United States” http://www.aclu.org/pdfs/humanrights/cerd_finalreport.pdf (“ACLU Report”) specifically pointed that, while initially part of President Bush’s declared “war on terror,” the FBI “has continued to undertake problematic inquiries and investigations of members of the Muslim communities, Muslim religious organizations (including mosques), and even Muslim charities.” 1/

The “targets” of these investigations, more commonly called “assessments,” quickly learn that FBI agents will visit their places of employment, worship, and community centers where they pressure and harass employers, co-workers, religious leaders, neighbors, friends, and even family members to provide the smallest kernel of evidence that would implicate the targets, or someone else, in some kind of activity that can classified as a “threat to national security” or be charged as some form of terrorist activity. 2/

The ACLU Report pointed out that in December 2008 the U.S. Department of Justice, under the direction of former Attorney General Michael MuKasey, established “The Attorney General’s Guidelines for Domestic FBI Operations.” These Guidelines, however, have a number of significant problems, according to the ACLU Report: “Most notably, they [Guidelines] open the door to abuse of power and racial profiling by allowing the FBI to open ‘assessments’ without any factual predicate. By calling their investigations ‘assessments,’ FBI agents can investigate any person they choose, provided it is done with the goal of preventing crime, protecting national security, or collecting foreign intelligence. There is no requirement of a factual connection between the agent’s authorizing purpose and the actual conduct of the individuals who are being investigated. FBI agents can initiate ‘assessments’ without any supervisory approval and without reporting to FBI headquarters or to the Department of Justice.” 3/ (more…)

September 1, 2009

CIA PROBE NECESSARY TO PROTECT RULE OF LAW

Filed under: Anti-Terrorism Lawyer — Tags: , , , , — johntfloyd @ 5:57 pm

Investigating Crimes of Torture: Expecting and Demanding Accountability

By: Houston Criminal Attorney John Floyd and paralegal Billy Sinclair

U.S. Attorney General Eric Holder recently selected a Connecticut federal prosecutor named John H. Durham to investigate whether the CIA’s destruction of the videotapes of harsh interrogation techniques inflicted upon terror suspects between 2002 and 2003 merit a full blown investigation of the agency employees (or independent contractors hired by the agency) who conducted those interrogations and those government officials who approved them.

Political conservatives–instigated by wing-nut pundits like Glenn Beck and Rush Limbaugh—have blasted Holder’s decision as being a terrible blow to the intelligence agency’s morale. They charge that the rank-and-file spy hawks will now be inhibited from protecting the country’s national security interests because of fear they will violate some law while “doing their duty” that might land them in the slammer.

The decision to investigate the CIA—regardless of whether it was those who ordered the torture interrogations, those who carried them out (regardless of whether the interrogators were career agency employees or independent contractors working as hired guns), or those who orchestrated the political cover up the massive torture conspiracy—should not depend upon “agency morale.” The so-called “morale issue” is a red-herring. The nation should not be concerned about the “morale” of a rogue agency that lacks the moral capability or legal duty to obey clearly established federal laws, international laws, and Geneva Conventions.

Former Vice-President Dick Cheney joined the political fray more recently by saying the selection of a special prosecutor was a political outrage. As one media pundit pointed out, the vice president himself has never held the Constitution in high esteem or exhibited very much respect for the rule of law. We agree. Shortly after 9/11, Cheney told then NBC’s Meet the Press host Tim Russert that those in power would have to visit the “dark side” to win President Bush’s declared “war on terror.” The former vice-president has since been a staunch defender of “harsh interrogation techniques” (water boarding, sleep deprivation, use of guns and drills to threaten blindfolded prisoners, attack dogs, beatings, and a host of other physical abuses) that he refuses to characterize as “torture.” (more…)

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