CRIMINAL JURISDICTION

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

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 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…)

June 23, 2009

A DEFENSE ATTORNEY IN THE HEAT OF BATTLE

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 12:03 pm

Rule 606(b) of the Texas Rules of Evidence; Conducting Inquiry into Juror Misconduct

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

Johnny Ray Ocon was put on trial in Ector County, Texas for the crime of aggravated sexual assault of a child. Sex offense cases involving children are the most difficult for a criminal defense attorney to try. Defense attorneys must be very careful and thorough during the voir dire of prospective jurors to identify any hidden biases a juror may harbor in such cases. It is not always easy to sift through an individual juror’s personality in the short period of time, and with a limited number of questions, to identify and isolate any prejudices the juror may have against the defendant.

Ocon’s attorney conducted a diligent and comprehensive voir dire of several dozen prospective jurors before twelve were chosen to hear the case against Ocon. Those twelve jurors took a solemn oath to be fair and impartial. Like most defense attorneys at the conclusion of voir dire and after the jurors were sworn, Ocon’s attorney knew there were probably a couple jurors who would not approach the case with an open mind despite their sworn duty to do so. But the attorney had put forth his best effort to select the kind of fair and impartial jury to which his client was entitled under both the federal and Texas constitutions.

But nothing throughout the jury selection process had prepared Ocon’s attorney for what he would encounter on the second day of the trial. During a brief recess, the attorney entered the men’s restroom in the county courthouse. He overheard someone in the next stall talking on a cell phone. The following are portions of the conversation the defense attorney heard:

Brenda – They’ve got me on this damn jury … I don’t know why the hell they picked me … I would rather be on a double ax murderer then [sic] this damn case … It’s dirty, disgusting … No, unless we convict the bastard today, then I’m kind of stuck here. (more…)

April 11, 2009

CHILD PORN: AN INCREASING PROBLEM IN ALL SEGMENTS OF SOCIETY

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 12:00 pm

Federally Funded Task Forces Make Online Crimes Against Children Top Priority

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

There has been a recent rash of media reports about local residents getting arrested or sentenced for possession of child pornography. For example, on March 13, 2009, the Houston Chronicle carried a report about a Houston attorney being given a six and one-half year sentence by U.S. District Court Judge Sim Lake. Williamson possessed 84 child pornography images on his computer. After he completes his prison sentence, the suspended attorney will be under “supervised release” for the rest of his life, must register as a sex offender, and attend a sex offender treatment program.

The following day the Chronicle carried a story about a 24-year-old Somerset, Kentucky man being charged with promotion of child pornography, online solicitation of a minor and sexual performance of a child. He was indicted for persuading an 11-year-old Humble girl to send him nude photographs of herself while the two played video games online with their PlayStation 3 consoles last December.

“This is another venue these guys are getting to use now that hasn’t been seen before,” Sgt. Gary Spurger, a Harris County Precinct 4 deputy constable, told the Chronicle. “They’re on PlayStation or Xbox playing online games.”

A March 19, 2009 Chronicle article featured the arrest of a former member of Bikers Against Child Abuse, a child abuse prevention organization. He was also arrested for possession of child pornography. And that same day the Chronicle carried yet another story about the federal child pornography indictment of a convicted sex offender already serving time in a state prison for a 1996 possession of child pornography conviction. This man had been given a state probation but had it revoked after he failed to register as a sex offender. The current federal indictment charged Hale with possessing child pornography while he was on state probation. (more…)

March 31, 2009

A TEXAS BIGAMY DEFENSE

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 1:48 am

The Constitutional Implications of Lawrence v. Texas on the Texas Bigamy Statute

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

The State of Texas will probably experience of series of bigamy trials stemming from the mass arrests made in the “infamous FLDS case” last year. The John T. Floyd Law Firm has been asked on a number of cases if there is a legitimate constitutional challenge to the Texas bigamy statute. See: Tex. Penal Code, § 25.01.

This answer to this question must necessarily begin with an analysis of a 2006 decision by the Utah Supreme Court, which rejected a litany of constitutional challenges to that state’s bigamy statute, and compared to the Texas statute. See: Utah v. Holm, 137 P.3d 726 (UT 2006), cert. denied, 127 S.Ct. 1371, 167 L.Ed.2d 159 (2007).

Rodney Hans Holm was convicted in Utah for bigamy and unlawful sexual conduct of a minor. He was legally married to Suzie Stubbs in 1986. As a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), he participated in a “religious marriage ceremony” with Wendy Holm. At age thirty-two, Holm participated in yet another “religious marriage ceremony” with the sister of Suzie Stubbs, sixteen-year-old Ruth Stubbs. Ruth moved into Holm’s house where Suzie, Wendy, and their children already resided. By the time Ruth turned eighteen, she had conceived two children with Holm. Id., at 730.

Holm was arrested, charged with three counts of unlawful sexual conduct with a minor, and charged with one count of bigamy. The jury returned a guilty verdict on each of the charges, and Holm was sentenced to five years on each conviction, with the sentences to be served concurrently, and fined $3,000.00. The sentences and fine were suspended conditioned on three years probation, one year in the county jail with work release, and two hundred hours of community service. Id., at 731-32. (more…)

March 22, 2009

THE RACHELL REPORT

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , — johntfloyd @ 1:09 pm

Harris County District Attorney’s Office Discloses “Cascading, System-Wide Breakdown” Led to Wrongful Conviction and 6 Years Imprisonment of Innocent Man

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

On December 14, 2008, we posted a blog titled The Conflicting Faces of Crime. One of those faces involved the wrongful conviction of Ricardo Rachell in 2003 for the aggravated sexual assault of an eight year old boy. Rachell was released from custody in December 2008 after he was exonerated by DNA evidence. The Harris County District Attorney’s Office and the Houston Police Department undertook a joint investigation to determine what went wrong in the Rachell case. On March 12, 2009, the two law enforcement agencies released the “Rachell Report” (“report”) which concluded that Rachell’s wrongful conviction was the result of a “cascading, system-wide breakdown.”

The “breakdown” in the Rachell case actually began outside the system. The report states that on Sunday, October 20, 2002, the eight year old boy “was observed running down Griggs Road, waving his hands in the air and crying.” An elderly man went to the child’s aid by taking him to Wyatt’s Cafeteria. Two women then took the boy home. The child did not convey to any of these people that he had been sexually assaulted. “He just stated that a man had a knife and was trying to kill him,” the report said. He did not provide a description of the attacker to these witnesses either.

Once home, patrol officers from the police department were summoned. The boy told these officers that a man had tried to kill him. The report does not indicate if the boy told these patrol officers the man had either tried or had actually sexually assaulted him. The report only stated that:

“The details he gave officers that night was that he was offered ten dollars to pick up trash and the man took him on the man’s bicycle. The location where he was abducted was the 3700 block of Southlawn. Those first officers did speak with the Complainant’s six year old friend who was with him just before the suspect took Complainant on his bike. The six year old also conveyed that the Complainant was offered ten dollars to pick up trash and was on a bicycle. The only description of the suspect in the offense report is that he was an unknown black male, age 30.” (more…)

January 25, 2009

CSAAS IN TEXAS CRIMINAL TRIALS

Filed under: Sexual Assault Crime Attorney — Tags: , , , , , , — johntfloyd @ 2:07 pm

Rule 702 Expert Testimony v. Bolstering, Child Sexual Abuse Accommodation Syndrome

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

In 1983, Roland Summit in a published paper coined the phrase “Child Sexual Abuse Accommodation Syndrome” (CSAAS). See: 7 Child Abuse and Neglect 177 (1983).Summit’s syndrome set forth five specific characteristics children may exhibit following sexual abuse. Summit intended that CSAAS be utilized by law enforcement and child protective services investigators, as well as clinicians, to explain the coping behavior of children sexually abused by adults. He did not intend for CSAAS to be used, as it has been in some states, as a diagnostic tool to tell juries in criminal trials that sexual abuse has in fact occurred. The five CSAAS characteristics are listed below:

Secrecy – The child is told by adult that the sexual abuse must be kept secret. Secrecy is generally accomplished through threats such as “daddy will go to jail;” “momma will not believe you and will get angry;” or “I’ll kill you and the rest of the family.” Secrecy can also be achieved through positive reinforcement such as “this is our special secret”; or “you must not tell anyone because they won’t understand.”

Helplessness – Sexual abuse instills fear and powerlessness in a child. They feel helpless to stop the abuse. The abuse usually comes from a power figure (a father, uncle, or priest) that make the child feel too vulnerable to stop it.

Accommodation – The demand for secrecy by the abuser and the child’s sense of helplessness can make the child feel trapped in a hopeless situation. She/he, therefore, may create a need to accommodate the abuse which can lead to psychological torment that the victim is somehow the “bad person” who created the abuse.

Delayed Disclosure – More commonly known in the Texas legal system as “delayed outcry,” the child may not disclose the sexual abuse for years because of fear of personal harm, or because of the perceived harm it could cause her/his family, or because of fear that no one will believe her/him. This may cause the child to act out in rage or anger because she/he feels that no one in authority has protected her/him. This can delay the disclosure of abuse for years until there is a period of personal crises in the child’s life or crises within the family unit.

Retraction – Disclosure inevitably creates turmoil. The child may be subjected to disbelief by the outside world, including law enforcement. Shame and humiliation become inevitable psychological byproducts of the disclosure. “The world knows,” the child thinks. And when the “world” does not truly support the child’s disclosure, she/her may retract the sexual abuse allegation. (more…)

January 14, 2009

SAME CLIENT: ANOTHER TRIAL, ANOTHER ACQUITTAL

Filed under: Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 7:24 pm

Client Falsely Accused of Child Sexual Abuse Wins Second Acquittal Against Determined Public Integrity Unit Prosecutor

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In early 2008 the Harris County District Attorney’s Office launched an investigation into alleged sexual abuse of inmates housed at a county detention facility. It is unclear exactly what prompted the inquiry, but a reasonable assumption can be made that the decision was influenced by the massive media and legislative attention given to evidence uncovered in 2007 by the Texas Rangers about widespread sexual abuse of inmates by staff in the state’s juvenile detention facilities.

Whatever the reason, a former Harris County detention facility officer was indicted between April and July of last year on multiple counts of sexual abuse of three female inmates during the time they were housed at the detention center in 2000. The former corrections officer, who had since become a deputy constable, retained the John T. Floyd Law Firm to represent him on the charges.

Two of the inmates were between 10 and 11 years of age and one was 13 or 14 years of age at the time of the alleged abuse [one instance of alleged sexual intercourse and numerous instances of inappropriate touching]. The teenage victim had already given birth to one of her six illegitimate children and was pregnant with the second at the time of the alleged abuse. All three victims had long histories of lying (even by their own admissions), drug use, stealing, and serious psychological disorders. The sexual abuse allegations by one of the former inmates against our client were thoroughly investigated in 2000 by detention center staff, the Houston Police Department and the District Attorney’s Office. The three law enforcement agencies determined the allegations were not credible, and, in fact, the alleged victim ultimately recanted the allegation, admitting that she had lied against our client in this particular instance and other instances just to “get him in trouble.”

Nonetheless, the District Attorney’s Office in 2008 determined that this thoroughly investigated and recanted sexual abuse allegation, as well as the other similar allegations of sexual abuse leveled against our client in 2000, warranted criminal prosecution. Our client bravely stood trial in September 2008 on the most serious sexual abuse allegation [aggravated sexual assault of a child]. The victim, who is now an adult with a substantial criminal history, testified about the alleged sexual assault. The assistant district attorney prosecuting the case made a serious tactical blunder: she relied almost exclusively on the victim’s testimony which, in Texas, is sufficient alone to sustain a criminal conviction in sexual assault cases involving minors. (more…)

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