CRIMINAL JURISDICTION

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

February 15, 2010

RELEASED SEX OFFENDERS – A GROWING UNDERCLASS

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , — johntfloyd @ 11:17 am

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 1994 the United States Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act which required all states to create programs mandating that certain kinds of sex offenders register with state or local authorities. Congress added teeth to the Act by threatening the states with a ten percent loss of federal anti-crime funding for failure to comply.

Child protection advocates like Marc Klaas, whose daughter (Polly) was brutally raped and murdered in the 1990s by a released sex offender who is currently on California’s death row, offer these reasons for sex offender registration laws:

  • Sex offenders pose a high risk of re-offending after release from custody;
  • Protecting the public from sex offenders is a primary governmental interest;
  • The privacy interests of persons convicted of sex offenses are less important than the government’s interest in public safety; and
  • Release of certain information about offenders to public agencies and the general public will assist in protecting the public safety.

Two years later, in 1996, Congress amended the Jacob Wetterling Act with Megan’s Law which mandated “community notification” when a sex offender moves into a given neighborhood. The notification laws make public virtually all private information about sex offenders. Klaas defends “notification” laws on these grounds:

  • Assists law enforcement in investigations;
  • Establishes legal grounds to hold known offenders;
  • Deters sex offenders from committing new offenses;
  • Offers citizens information they can use to protect children from victimization.

Then in 2006 President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act. This Act requires the U.S. Justice Department to create a national sex offender database accessible to the public through the Internet allowing nationwide searches about registered sex offenders.

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January 20, 2010

CHILD PORNOGRAPHY: JUDICIAL CHAOS LEADS TO HORRIFIC SENTENCING DISPARITIES

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 1:28 pm

Court Describes Federal Sentencing Disparities as “A Picture of Injustice”

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 1984 the United States Congress enacted the Sentencing Reform Act (“SRA”), and as part of the Act, Congress created the United States Sentencing Commission (“Commission”) to “establish sentencing policies and practices for the Federal criminal justice system.” 1/ The Commission was charged with the responsibility of creating U.S. Sentencing Guidelines (“Guidelines”) that would assist Federal judges in the sentencing process to fulfill Congress’ five purposes for imposing criminal sentences. 2/

Title 18, United States Code, Section 3553(a)(2) lists the five congressionally-mandated purposes for sentencing:

  • To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
  • To afford adequate deterrence to criminal conduct;
  • To protect the public from further crimes of the defendant; and
  • To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

While the Guidelines and the § 3553(a) factors were intended to eliminate the gross disparities in federal sentencing practices before the SRA, they have failed miserably in many significant respects, particularly in child pornography cases. Since the enactment of the SRA, Congress has repeatedly created new offenses, increased penalties, and issued directives to the Commission concerning child pornography offenses. 3/ The following is a list of many of the laws enacted by Congress over the last three decades regarding child pornography-related offenses:

  • Protection of Children Against Exploitation Act of 1978;
  • Child Protection Act of 1984;
  • Child Sexual Abuse and Pornography Act of 1986;
  • Child Abuse Victims’ Rights Act of 1986;
  • Child Protection Restoration and Penalties Enhancement Act of 1990;
  • Sex Crimes Against Children Prevention Act of 1995;
  • Protection of Children from Sexual Predators Act of 1998;
  • Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003;
  • PROTECT Our Children Act of 2008;
  • Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2008;
  • Keep the Internet Devoid of Sexual Predators Act of 2008; and
  • Effective Child Pornography Prosecution Act of 2008.

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January 14, 2010

THESE ARE DANGEROUS TIMES IN WHICH WE LIVE

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 1:55 am

Civil Commitment: Pre-Emptive Strike against Future Acts by Convicted Sex Offenders

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In 1999 John Charles Volungus plead guilty in the United States District Court for the Western District of Kentucky to three federal criminal sex offenses: possession of child pornography; receipt of child pornography through interstate commerce by means of a computer; and use of a facility of interstate commerce (computer) to persuade a person under the age of eighteen to engage in a sexual act. 1/ He was sentenced to 53 months in the custody of the Federal Bureau of Prisons (“BOP”) to be followed by a term of supervised release. He was released from actual custody only to have his supervised release revoked. He was returned to the custody of the Bureau of Prisons for another23 months. This latter term of imprisonment expired on February 15, 2007. 2/ Although housed at a number of different facilities while in the custody of the BOP, Volungus was confined at the Federal Medical Center Devens in Ayer, Massachusetts (a prison hospital) when he completely satisfied his prison sentence. 3/

Shortly before Volungus’ February 2007 release date, the United States Government filed a petition to have him “civilly committed” as a “ sexually dangerous person” already in federal custody. The government’s action was based on a provision of the Adam Walsh Child Protection and Safety Act (Walsh Act), which was signed into law in 2006 by former President George W. Bush. This little known provision allows the government to request the civil commitment of any inmate committed to federal penal custody for a sex offense upon completion of the inmate’s federal sentence. 4/ The provision is known in the federal court system as a “Section 4248 proceeding.”

Section 4248 defines a “sexually dangerous person” as anyone “who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 4248 says the individual becomes “sexually dangerous” when he/she “suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” 5/

Section 4248 is implemented by the government in the following manner: “A responsible federal official (the Attorney General, the director of the BOP, or the designee of either) may initiate [civil] commitment proceedings by petitioning the federal district court in the judicial district in which a targeted person is confined. The petition must certify to the court that the target, whom we shall call respondent, ‘is a sexually dangerous person.’ The filing of the petition stays the respondent’s release from federal custody, notwithstanding the expiration of his sentence, ‘pending completion of procedures’ described in the Walsh Act.

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November 7, 2009

THE RIGHT TO AN IMPARTIAL TRIAL STRUCK WITH CRITICAL BLOW

Filed under: Child Abuse Crimes Lawyer — Tags: , , , — johntfloyd @ 4:17 pm

Failure to Strike Prosecutor, Victim of Sex Crime, from Jury not Ineffective Assistance of Counsel

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Sixth Amendment to the United States Constitution guarantees every criminal defendant a right to an impartial trial. 1/ Selecting a jury of twelve men and women to hear a criminal case is perhaps the most critical stage in the trial process where a defense attorney must provide effective representation. He has a pool of prospective jurors representing a cross-section of the community from which to select the people who will hear the facts and fairly consider the case. This jury pool is a minefield of human experiences that range from concealed bias and prejudice to open fairness and impartiality. The task of the defense attorney is to navigate through the minefield without exploding a mine that will injure his client’s opportunity for an impartial trial.

The constitutional guarantee of an impartial trial, in all actuality, begins with voir dire—a French term meaning “to speak the truth.” Voir dire is a pre-jury selection phase of the trial during which the prosecution and defense are afforded an opportunity, under the strict supervision of the trial judge, to question prospective jurors to determine if they are qualified and suitable to serve on a jury. These questions are often initially influenced by the questionnaires prospective jurors are required to fill out before the voir dire gets underway.

Texas criminal procedure grants ten peremptory challenges—the right of either party to exclude a potential juror for any reason or no reason at all so long as the challenge is not use to discriminate on the basis of race, gender, or ethnicity—to both the prosecution and the defense in non-capital felony cases and capital cases in which the State does not seek the death penalty. If two or more defendants are jointly tried, each defendant and the prosecution are entitled to six peremptory challenges. 2/

A defense attorney must utilize these peremptory challenges in a judicious manner. They are generally exercised when the attorney detects, either through direct responses from the prospective juror to specific questions or from mere instinct honed by years of trial practice, that a prospective juror is biased in a very specific sense or harbors prejudices in a general sense against particular defendants. And a defense attorney in Texas does not have a lot of time to make these calls. Most judges impose very restrictive time frames for completing the voir dire examination—ranging from twenty minutes to an hour. It is critical, therefore, that an attorney be thoroughly prepared before he/she enters the jury selection arena. (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 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…)

July 29, 2009

A GOOD FAMILY DOCTOR OR A SECRET PEDOPHILE?

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 12:09 pm

Child Pornography and Exploitation

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Neighbors say the couple that lived in the $1 million home in the 11100 block of South Country Squire Road were “the sweetest on the block” who brought cakes to the new home owners that moved into the exclusive neighborhood. The 69-year-old orthopedic surgeon who lived at the residence was considered the “ideal grandfather figure.” He reportedly bought expensive gifts, including rent-free houses, for the economically deprived parents of several of his youngest child patients. Over a two-decade period he spent as much as $250,000 on these gifts.

But, according to police and Harris County Assistant District Attorney Eric Devlin, the doctor was a secret pedophile who began molesting some of his male child patients as young as four years of age and continued the molestation into the patients’ teen years. Following a two-year investigation by the Houston Metro Internet Task Force that began when a former abused patient, now an adult, came forward and reported the abuse to the police, the doctor was arrested on July 21, 2009 for sexually abusing four former patients when they were young boys.

The arresting authorities told the local media that The doctor was the “smartest, most obsessed” pedophile they had ever encountered. They pointed to two police vans of evidence, including videotapes of the sexual abuse, seized from his office and residence to support this claim. The Houston Chronicle reported that some of the evidence seized included “dozens of binders” of photos of children and news stories about “kidnapping and child brutality.”

“All the time he spent cutting out pictures of little kids, articles about rapes, murders, and brutal deaths and information that would help him ingratiate himself with his victims and any future victims,” Houston juvenile investigator J.R. Roscoe told the Chronicle, “that’s a lot of research. He was very friendly, very kind, a sweet old man. He would be the ideal grandfather, for the role he played.” (more…)

July 25, 2009

THE UNRELENTING MARCH AGAINST FLDS

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 4:11 pm

Texas Legislature Joins the Hunt

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

Besides March winds, April showers, and June humid heat, the one thing you can go to bank on: when state lawmakers, either in Texas or any other state, get involved is trying to legislate religion and morality, you will have a witch-hunt. Lawmakers are generally panderers to public opinion, not servants of public interest. If they believe one vote can be had by manipulating public fears or social outrage, they will get involved in any issue that generates media attention. The Eldorado, Texas-based FLDS (Fundamentalist Church of Jesus Christ of Latter Day Saints), therefore, became an ideal target for legislative scrutiny during this past session.

In April 2008 the Texas Rangers, in cooperation with local law enforcement officials and the state’s Child Protective Services (“CPS”), raided the church’s compound (known as the YFZ Ranch) on the basis of false information received about child sexual abuse occurring at the compound. Specifically, the information reinforced a popular perception that older FLDS men marry teenage girls in arranged “spiritual marriages” and practice polygamy. The raid resulted in 468 FLDS children being forcefully separated from their parents by CPS before being ordered returned to their families by two state appeal courts. Altogether, ten FLDS men were indicted on a litany of charges ranging from sexual assault to bigamy and failure to report child abuse. None of the men have yet to face trial in the wake of the nearly $20 million law enforcement fiasco.

Determined to get something out of the exorbitant expenditures of tax dollars associated with that 2008 raid, the Texas Legislature this past April conducted hearings on a bill introduced by state Rep. Harvey Hilderbran, R-Kerrville that would make child abuse a Class A misdemeanor and send repeat offenders to jail. Hilderman’s bill would also require CPS to remove perpetrators of child abuse, not the child victims of such abuse, from a home.

“The safety of the children is paramount, and that is our first priority,” Hilderbran stated before the House Human Service Committee which conducted those hearings. (more…)

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