CRIMINAL JURISDICTION

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

October 9, 2011

TEXAS’ APPROACH TO TEEN SEXTING

Filed under: Child Abuse Crimes Lawyer — Tags: , , , — johntfloyd @ 11:28 am

States Reevaluating Criminalization of Juvenile Cyber-Sex

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

This past legislative session Texas joined the ranks of a small number of states which have reduced criminalization “teen sexting.” Gov. Rick Perry signed the law this past June which is designed to, according to Wireupdate, “prevent teenagers from sexting without subjecting them to serious criminal penalties that have life-long consequences.” Before this latest legislation became law on September 1st teenagers could have faced the more serious felony charge of “promotion of child pornography” which, upon conviction, would have resulted in lifetime registration as a “sex offender.”

The new law permits prosecutors to charge minors, younger than 18, caught sexting with a misdemeanor punishable by a fine of not more than $4,000, confinement in jail for less than a year, or both. Prosecutors can also request courts sentence the youths to “participate in an education program about sexting’s harmful long-term consequences,” reported Wireupdate. But more significantly the bill requires the Texas School Safety Center, with input from the Texas Attorney General’s Office, to develop an “education program” that will allow schools to first “address the consequences of sexting.”

“Studies show that teenage students are increasingly creating, sending and receiving explicit pictures of themselves on their mobile telephones,” Texas Attorney General Greg Abbott said. “The practice is not just harmful to the young Texans who appear in compromising photograph – it poses significant legal risks. Thanks to Sen. Kirk Watson’s legislation, Texas has a common sense law that holds wrongdoers accountable – but does not impose life-altering consequences on young offenders.”

Sen. Watson, the sponsor of the bill in the Texas Senate, said the new law is a “timely [and] thoughtful” response to modern legal issue faced by prosecutors and children. He added: “This problem must be met head-one with both educational and appropriate consequences. We’ve given law enforcement an alternative for dealing with juveniles who make a mistake, and we’ve left prosecutors the discretion to pursue felony charges against those who constitute a true threat to our children.”

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September 23, 2011

18 U.S.C. § 2559: U.S. APPELLATE COURTS IN CONFLICT OVER CHILD PORNOGRAPHY RESTITUTION ISSUES

Filed under: Child Abuse Crimes Lawyer — johntfloyd @ 4:44 pm

Difficulty Establishing Restitution Child Pornography Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In two previous posts (here and here), we discussed the increasing trend of victims of child pornography seeking restitution damages under 18 U.S.C. § 2259 against defendants who were convicted of possessing child pornography depicting their images.  These restitution requests have triggered significant conflicts in the federal courts of appeals, most notably between the Fifth and Second Circuits. On September 8, 2011, the Second Circuit, in United States v. Aumais, reinforced the reasoning it expressed in its August 18, 2011 decision, United States v. Marino; specifically, that these victims must demonstrate a “proximate cause” between a defendant’s possession of the pornographic images and any “harm” suffered by the individual.

The Second Circuit squarely placed itself in the ranks of the D.C. Circuit (United States v. Monzel), 3rd Circuit (United States v. Crandon), 9th Circuit (United States v. Laney, and more recently, United States v. Kennedy), and 11th Circuit (United States v. McDaniel) in finding that the Government must prove that a defendant’s possession of child pornography caused harm to the child victim depicted in the pornography he possessed. The Fifth Circuit, however, in In re Amy Unknown, held that “proximate causation” was not a prerequisite to a showing of harm under § 2259:

“The structure and language of § 2259(b) (3) impose a proximate causation requirement only on miscellaneous ‘other losses’ for which a victim seeks restitution. As a general proposition, it makes sense that Congress would impose an additional restriction on the catchall of ‘other losses’ that does not apply to the defined categories. By construction, Congress knew the kinds of expenses necessary for restitution under subsections A through E; equally definitionally, it could not anticipate what victims would propose under the open-ended subsection F.”

The Fifth Circuit also relied on what the Second Circuit in Aumais called “the manifestation” of a “congressional purpose to award broad restitution” to justify its limitation of proximate cause only to the loss defined in subjection F. The Second Circuit, however, chose to follow “the majority of circuits and hold that under § 2259, a victim’s losses must be proximately caused by the defendant’s offense.” Specifically, the Aumais court endorsed the D.C. Circuit’s reasoning in Monzel that “proximate cause is a deeply rooted principle in both tort and criminal law that Congress did not abrogate when it drafted § 2259.”

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September 18, 2011

IMPACT OF CRIME VICTIMS RESTITUTION ACTS

Filed under: Child Abuse Crimes Lawyer — Tags: , , , — johntfloyd @ 3:07 pm

Fifth Circuit’s Decision on Restitution in Possession of Child Pornography Cases Creates Sentencing Nightmare

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In theory the criminal justice system has a fundamental obligation to provide restitution to crime victims. In practice this obligation has created a contentious and ongoing legal debate in federal appellate courts as to how this obligation must be met. Two recent decisions emanating out of the Fifth and Second federal circuits underscore the difficulties faced in deciding when and how restitution is appropriate, the level of harm caused to victims, and the statutory standards by which restitution can be awarded. Last year we dealt with the issue of restitution in child pornography cases which, we believe, has run constitutionally amuck (here). We feel it’s time to examine both the legislative history, and the statutory application, of crime victims’ restitution acts, both of which were discussed at some length by the Second Circuit on August 18, 2011 in United States v. Marino.

Matthew Marino was convicted of misprision of a felony, a violation of 18 U.S.C. § 4, in connection with a Ponzi scheme; and following a guilty plea, New York’s Southern District U.S. District Court Judge Stephen C. Robinson ordered Marino to pay $60 million to those defrauded in the scheme. The restitution order was imposed pursuant to the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, which was enacted in 1996 as part of the Anti-Terrorism and Effective Death Penalty (“AEDPA”). In upholding extraordinary restitution order, the Second Circuit informed us that the first crime victims restitution law was passed by Congress in 1982 under the title of Victim Witness Protection Act (“VWPA”), 18 U.S.C. § 3663(a)(2), which was a general, discretionary restitution statute revised in 1986 and which was later “partially superseded” by MVRA. The VWPA was overhauled in 1990 as part of the Crime Control Act of 1990, including authorizing federal courts, when sentencing in certain crimes, to order “that the defendant make restitution to any victims of such offense,’ which was pointed out by the U.S. Supreme Court in Hughey v. United Statesshortly before the 1990 VWPA amendment.

In 2009 the Second Circuit, in United States v. Battista, said “the goal of restitution in the criminal context, is ‘to restore a victim, to the extent money can do so, to the position he occupied before sustaining injury.’” MVRA defines a “victim” as broadly as any of the restitution statutes: It is a “person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered, including in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” VWPA had essentially adopted the same “victim” definition in 1990.

Significantly, the Second Circuit in Marino pointed out that the current version of MVRA and the original version of VWPA included an important provision that limited a federal court’s authority to order restitution where such an order “would unduly complicate or prolong the sentencing process.” The appeals court pointed to a Senate Report that explained “the Committee added this provision to prevent sentencing hearings from becoming prolonged and complicated trials on the question of damages owed the victim.”

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August 16, 2011

INTRODUCING EVIDENCE OF PRIOR FALSE ALLEGATIONS

Filed under: Child Abuse Crimes Lawyer — Tags: , , — johntfloyd @ 4:31 pm

Confronting Witnesses with Prior False Allegations to Support Theory of Bias, Motive or Interest

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

One of the most devastating crimes that can happen to anyone is to be falsely accused of having sexually assaulted a child. A significant number of potential jurors in child sexual assault cases readily admit in jury selection, voir dire, that they do not believe a child would “make up” a story about being abused. But we know it happens (here, here, and here). Children lie about sexual abuse for an endless assortment of reasons: mom told them to do it in bitter divorce custody disputes; they want to “get even” with a relative who was responsible for them being disciplined; they want to be removed from a household, especially in foster care, in which there are a lot of behavioral restrictions; they are emotionally unstable or mentally ill.

But can a defendant charged with a child sexual assault offense present evidence that the victim has made prior false abuse allegations?

In 2000 the Texas Court of Criminal Appeals “CCA”), in Lopez v. State, held that Rule 608(b) of the Texas Rules of Evidence prohibits the introduction of evidence of prior false abuse allegations. Rudolfo Lopez was convicted of forcing a 12-year-old boy to perform oral sex on him over a period of several months. He was given a 12-year prison sentence. His attorney at trial had sought to introduce evidence that two years before the sexual abuse the boy had made a false allegation of physical abuse against his mother; namely, that the mother had allegedly thrown him against a washing machine. The boy’s false allegation against his mother had been made to the Department of Human Services. Citing Rule 608(b), the trial court refused to allow Lopez’s attorney to introduce the evidence.

Rule 608(b) provides that “specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.”

The question squarely before the CCA was whether, in a case involving a sex offense, the Confrontation Clause set forth in the Sixth Amendment of the U.S. Constitution requires that evidence of a victim’s prior false allegations of abuse against a person other than the defendant be admissible. The U.S. Supreme Court, in Davis v. Alaska, held that the “primary interest” guaranteed by the Confrontation Clause is the right of cross-examination. The CCA and Texas courts of appeals have interpreted this Supreme Court mandate to mean “each Confrontation Clause issue” must be decided on a “case-by-case” basis and that a trial court must balance the probative value of the evidence against whatever risks its admission may produce (here, here, and here).

While the CCA pointed out that some 36 states have carved out an exception to their impeachment statutes allowing for the introduction of prior false accusations of abuse under the Confrontation Clause, Texas’ highest court of criminal appeals was not impressed; and, in fact, criticized those 36 states, saying they relied upon nothing more than “generalizations” to justify their exceptions and such “generalizations are just not true in every case.” Saying that none of the rationales utilized by the 36 states for their impeachment exceptions persuaded the court to “create an across-the-board exception to [Rule 608(b) for sex offenses,” the CCA then detailed its position with the following reasons:

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May 11, 2011

NINTH CIRCUIT EXPANDS BORDER SEARCH INLAND

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 2:13 am

Extended Border Search Doctrine: Suspicionless Searches of Computers and Cameras Need not be Conducted at Time and Place of Entry

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

It was a case of “first impression” for the Ninth Circuit Court of Appeals—the case of United States v. Howard Cotterman, a repeat sex offender who was arrested at a “border stop” in Lukeville, Arizona in April of 2007. Cotterman, and his wife Maureen, tried to reenter the United States from Mexico at Lukeville. Both had valid U.S. passports. As part of border reentry protocol, an inspector ran a check of the passports through Border and Custom Protection. This routine check produced a Treasury Enforcement Communication System alert on Howard Cotterman’s name—an alert which had been placed in the system by U.S. Immigration and Customs enforcement. The alert stemmed from Cotterman’s 1992 convictions in Long Beach, California for illegal sexual misconduct with a child and child sexual molestation. The ICE alert instructed border inspectors to be on the “lookout” for child pornography.

The ICE alert, as reasoned by the Ninth Circuit, was sufficient probable cause under 19 U.S.C. §§ 1433 and 1582 to direct the Cottermans to a “secondary inspection area” for a more “thorough search” of their vehicle and belongings. The Lukeville border inspection officer then called Long Beach ICE authorities who had placed the “alert” and was instructed to “search anything” that could contain child pornography. A subsequent search of the Cotterman’s vehicle revealed two laptop computers and three digital cameras. Border inspector Antonio Alvarado was given the task of inspecting the laptops while other agents searched the vehicle. Alvarado’s preliminary search did not reveal any child pornography, but his suspicions were aroused because many of Cotterman’s files were “password protected.”

These suspicions were conveyed to Craig Brisbine, an ICE supervisor in Sells, Arizona, who, along with Agent Mina Riley, went to the Lukeville “port of entry” station. During their trip to Lukeville, the two agents made a decision to detain Cotterman’s laptops for “forensic examination.” Shortly after their arrival, agents Brisbine and Riley gave the Cottermans their “Miranda rights” warnings, after which the couple were interviewed separately. Neither provided any incriminating evidence, although Cotterman did offer to help the agents with his computer—an offer rejected by the agents. Agent Riley said she rejected Cotterman’s offer because she was not trained in computers and feared (1) Cotterman could delete files without her knowing it, (2) the laptops could be “booby trapped,” and (3) there might be files she could not see even with full access to the laptops.

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March 26, 2011

OVERZEALOUS FEDERAL PROSECUTION FOR PRODUCTION OF CHILD PORNOGRAPHY REVERSED

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , — johntfloyd @ 10:05 am

U.S. v. Steen: Voyeur’s Video of Child at Tanning Salon Insufficient to Support Conviction

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

You would think that an Assistant U.S. Attorney, charged with prosecuting offenses against the laws the United States, would understand the laws upon which he elects to indict a criminal defendant. But far too often federal prosecutors, especially in “child sex cases,” are more concerned with securing convictions to “notch” the handle on their legal resume than in pursuing justice as they are legally and ethically required to do. Such was the apparent motive for the 2009 prosecution of a petty “voyeur,” Allen Steen, in federal court in Odessa, Texas under the child pornography law, 18 U.S.C. 2551(a)—a statute which carries a mandatory minimum of 15 years upon conviction.

Let’s examine the requirements of the statute before we examine Steen’s conduct, which brought about his prosecution and conviction under it. On February 25, 2011, the Fifth Circuit Court of Appeals, in United States v. Steen, said § 2251(a) punishes “[a]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in … any explicit conduct …”

There are two terms in that statute which were critical to the prosecution of Steen. First, the statute defines a “minor” as any person under the age of 18; and, second, defines “sexually explicit conduct” as intercourse, bestiality, masturbation, sadistic or masochistic abuse, or a “lascivious exhibition of genitals or pubic area of any person.”

Now let’s examine the conduct that triggered a decision by the U.S. Attorney’s Office to prosecute Steen under § 2551. Steen frequented the Electric Sun Tanning Salon in Odessa. Because of the heat generated by the tanning equipment, the walls in the individual rooms did not go all the way to the ceiling. Steen on at least two occasions stood on a chair in his room, and even though he could not see over the walls, he held a small camera over the partition and filmed unsuspecting female tanners.

The filming of the first female by Steen lasted approximately 15 seconds—most of which depicted her back and hair, although 1.5 seconds of the video on the right edge of a frame depicted her pubic area. This incident occurred on April 3, 2009.

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January 16, 2011

EXCESSIVE FINES-PROPERTY FORFEITURE IN CHILD PORNOGRAPHY CASES

Filed under: Child Abuse Crimes Lawyer — johntfloyd @ 5:02 am

Courts Stretch Logic and Allow Government Land Grab in Child Porn Case

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Former President George W. Bush appointed more than 200 judges to the federal bench. The Ivy League graduate and former Texas governor had a two-part litmus test for federal judgeship appointments: the appointees had to be young and ideologically conservative. While Bush made a number of “diverse” appointments, the “overall number of minority judges in the federal courts did not increase during his tenure,” said Jennifer Segal Diascro, professor of government at American University’s School of Public Affairs.

Bush’s federal judgeship appointments had no greater impact than on the Eighth Circuit Court of Appeals. The former president appointed six of the seven judges in the conservative majority. Bush took special pride in the politically conservative shape he gave the federal judiciary. At an October 2008 conference sponsored by the Cincinnati chapter of the Federalist Society, “the elite network for the conservative movement” reported the New York Times, Bush informed the group that he had appointed one-third of the federal judiciary expected to be serving when he left office.

We have reported in the past about how the Eighth Circuit can, and will, hand down rogue decisions which conflict with U.S. Supreme Court precedent. That’s why we were not surprised by one of the court’s more alarming decisions last year in a child pornography case, United States v. Hull. Larry Richard Hull was indicted for one count of possession of child pornography and four counts of distribution of child pornography in violation of 18 U.S.C. Sec. 2252. He pled guilty to two counts of distribution of child pornography. At the time of the conviction Hull owned 19 acres of rural property in the state of Iowa and the Government through its indictment sought to have all the land forfeited pursuant to 18 U.S.C. Sec. 2253. Subsection (a)(3) of the forfeiture statute explicitly provides that the Government may seek, and the trial court may order, forfeiture of “any property, real or personal, used or intended to be used to commit or to promote the commission of such offense or any property traceable to such property” Following a bench trial, the trial judge ordered all of Hull’s land forfeited, saying he was comfortable the penalty did not violate the Excessive Fines Clause because Hull’s “equity in the property did not exceed the maximum applicable fine.”

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December 16, 2010

DEFENDING AGAINST JUROR BIAS IN SEX CRIMES

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 6:03 am

Voir Dire, Inability to Consider Full Range of Punishment: Proper Objection and Practice to Preserve Error for Appeal

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Sex offenses involving children are beyond a doubt the most difficult to defend, particularly when the allegations appear compelling and the witnesses are believable (here, here, and here).  These kinds of sexual assault allegations are easy to indict and even easier to prosecute. All the prosecution needs is the victim’s testimony to secure and sustain a conviction. These offenses are difficult to defend because potential jurors enter the trial setting with a predisposed bias against anyone charged with a sex offense against a child. While the defense counsel tries to exclude these biased jurors from the jury, either through peremptory challenges or challenges for cause, too many effectively conceal their bias in order to serve and convict. These jurors want to be part of a process that convicts the insidious “child molester.”

Antonio Zavala Cardenas was indicted for three counts of aggravated sexual assault of a child and one count of indecency with a child. The evidence against him was indeed compelling. His aunt discovered him in bed with her four-year-old daughter, and suspecting the worse, she pulled the covers back to see her daughter’s pants and underwear pulled down and her nephew hurriedly trying to refasten his trousers. Besides the aunt’s testimony, the child testified that Cardenas had removed her underwear, exposed his penis to her, and rubbed his penis against her genitalia. Police testified that Cardenas admitted in a written statement that he had put his “hand down in front of [the child’s] pants” and rubbed “circles on the top of her vagina.”

Prior to the voir dire process, the trial judge explained the general law concerning the charged offenses and the permissible range of punishments. The judge informed the venire panel that Cardenas was:

“ … charged with the offense of aggravated sexual assault of a child. The range of punishment for that offense is not less than five years nor more than 99 years or life in the Institutional Division of the Texas Department of Criminal Justice. In addition to that, a fine of up to $10,000 may be assessed. The range of punishment for the offense of indecency with a child is not less than two nor more than 20 years in the Institutional Division of the Texas Department of Criminal Justice. And in addition to that a fine of up to $10,000 may be assessed in that case also.

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