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.”

(more…)

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.”

(more…)

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.

(more…)

February 20, 2011

THE COMPUTER IS A CRIME MACHINE

Filed under: Federal Crimes Lawyer — Tags: , , , , , , , — johntfloyd @ 1:24 am

Computer Crimes and Prosecutions on the Rise: Cyber Espionage, Theft of Corporate Trade Secrets and Identity Fraud Continue to Increase

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Every human invention designed to benefit mankind has always been corrupted for illegal and immoral purposes. It’s a flaw inherent in the human soul. So it is with the computer—one of man’s most significant inventions and which someday may well be the cause of man’s downfall, at least according to some prophets of doom. While the computer is essentially a wonderful device that services billions of legitimate purposes, it is also an attractive vehicle for criminal pursuits.

From well financed foreign government intelligence operations to small-time identity thieves, the computer is being used to revolutionize crime.  The current boogie-man in the computer world is China.  From presidential wannabes like Donald Trump to global computer giants like Google and Microsoft, China is seen not only as a global business competitor but also as a communist spy and saboteur that sneaks into our country via the internet.

In 1998 when China had far more people than computers there were only 148 computer crime cases reported in that country. By 2009, that number had increased to 48,000. The crimes include distributing obscenity and child pornography, gambling, producing and spreading viruses, and computer and networking hacking, according to a white paper titled The Internet in Chinawhich was issued by China’s Office of the State Council. The report added that in 2009 more than one million IP addresses in China were controlled from overseas and that 42,000 websites were destroyed and another 18 million Chinese computers were infected by the Conflicker virus on a monthly basis—some 30 percent of the nation’s computers.

“China is one of the nation’s suffering the most from hacking,” the paper lamented.

The Chinese government apparently took notice from its own computer criminals as well as those from abroad. The government discovered that hacking and website invasion made for excellent military and technology information gathering.  A recent report by McAfee Inc. disclosed that hackers from China stole sensitive information from oil companies, adding to the growing prevalence of computer crimes being committed by the official Chinese government.

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June 19, 2010

ADAM WALSH ACT UNDER CONSTITUTIONAL SCRUTINY

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 7:22 pm

Growing Practice of “No Bond” and Unreasonably Harsh Sentences for Some Child Sex Crimes Sparks Judicial Concern

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

In July 2006 former President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act (“Walsh Act”). Title I of the Walsh Act, the Sex Offender Registration and Notification Act (“SORNA”), received the most media attention because it expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements.

One of the lesser publicized impacts of the Walsh Act has been the restrictions on bail and the increased sentencing disparity for defendants charged with simple possession of computerized child pornography. The latter problem was succinctly described by Judge Merritt’s dissent in a January 9, 2009 decision by the Sixth Circuit Court of Appeals, United States v. Paull, in which he said: “As a recent October 23, 2008, Wall Street Journal article by Amir Efrati points out, our federal legal system has lost its bearings on the subject of computer-based child pornography. Our ‘social revulsion’ against these ‘misfits’ downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone the Department of Justice has brought 2,200 cases… in the federal courts. Some trial and federal judges are sending these mentally ill defendants like Paull to federal prison on very long sentences. But the 17-1/2 year sentence for Paull may be the longest yet. He is a 65-year-old, psychologically disabled, former minister with Type I diabetes with many complications. How could this sentence be ‘not greater than necessary’ to punish this crime?”

Some federal prosecutors in the Southern District of Texas (“Southern District”) have expanded the “witchcraft” mindset from harsh sentencing practices to the unilateral practice of requesting detention pending trial, no bail, for all defendants charged with possession of child pornography. This creates a situation where child porn defendants in some federal districts are granted bail, albeit with strict conditions, while defendants in the Southern District are denied bail. This harsh policy of pretrial detention for child pornography defendants in the Southern District raises serious constitutional concerns; primarily, that the Eighth Amendment prohibition that “excessive bail shall not be required” is violated. The Supreme Court nearly 60 years ago in Stack v. Boyle held that criminal defendants charged in non-capital cases “shall” be released on bail if they give adequate assurances that they will appear at trial and submit to sentence if convicted.

With the Bail Reform Act of 1984, Congress codified the presumption in favor of pretrial release but also firmly established that bail is not a matter of constitutional right in all cases. Three years later the Supreme Court in United States v. Salerno upheld this congressional mandate by saying that “when Congress has mandated detention on the basis of a compelling interest other than prevention of flight … the Eighth Amendment does not require release on bail.”

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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.

(more…)

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.

(more…)

October 1, 2009

SEX OFFENDER REGISTRATION LAWS BEG REFORM

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , , — johntfloyd @ 1:28 am

Some in Law Enforcement, Legislatures, Find Federal Sex Offender Registration Laws Too Broad, Onerous

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In April 2009 CNN reported that there are 38 states in these United States which require juveniles convicted of sex offenses to “register” as sex offenders. The Houston Chronicle (September 21, 2009) featured a front page article by Renee C. Lee (“A Long Wait to Get Past Crime”) which reported that there are approximately 3,600 registered juvenile sex offenders in the State of Texas, according to the Texas Department of Public Safety. The newspaper noted that eleven of these juveniles were ten years of age when they were registered.

The increased number of juveniles being compelled to register as “sex offenders” when convicted of any sex-related offense is a direct result of the 2006 Adam Walsh Child Protect and Safety Act. Title I of the Walsh Act is called the Sex Offender Registration and Notification Act (“SORNA”) which expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements. SORNA applies to all 50 states, the District of Columbia, the five principal U.S. territories (Guam, American Samoa, the Northern Mariana Islands, the Virgin Islands, and Puerto Rico), and the federal Indian tribes whose jurisdictions are defined by the statute.

But with its frequency of application to juveniles, SORNA has triggered a growing debate among child protection advocates who favor registration of all sex offenders regardless of age and some who say the registration law creates more harm than good when it comes to juvenile sex offenders. A growing number of law enforcement officials have weighed in on the debate saying the by placing so many relatively minor sex offenders—such as most juveniles—in the sex offender registry limits their ability to track far more dangerous sex predators. And some state legislatures such as California, already faced with dire fiscal restraints on their budgets, have begun to seriously question the costs involved in tracking non-dangerous, especially juvenile. sex offenders through sex offender registries.

In a March 1, 2008 article (The Walsh Act And Its “SORNA” Implications), we reported about the growing dissatisfaction in Texas among “an unlikely coalition of law-and-order conservatives: victims’ rights advocates, prosecutors, and ‘tough-on-crime’ legislators. These critics now believe that SORNA is too costly, unnecessarily strict, and has the potential of harming the very victims it was designed to protect.” (more…)

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