Constitution - Bill of Rights Category Archives — Page 12 of 12 — White Collar Criminal Defense Lawyer Blog Published by Miami, Florida White Collar Criminal Defense Attorney

Published on: May 5, 2011

Court upheld Miami Federal Cyber Crime Conviction; U.S. v. Lanzon

This was case is an example of a cyber crime investigation in Miami that focused on the using the internet to solicit minors for illegal illicit sexual activities. In U.S. v. Lanzon the defendant was indicted for persuading a minor to “engage in prostitution or any sexual activity for which any person an be charged with a criminal offense, or attempts to do so.” (18 U.S.C. §2422) The indictment alleged an attempt to violate Florida Statute §800.04(4)(a), (engaging in sexual activity with a person under 16.) Lanzon, who was convicted in Miami Federal Court, argued that the government failed to prove its case at trial and he filed a motion warrantless search of his truck, which yielded key evidence in the case.

A Miami-Dade Police Detective of the Sexual Crimes Bureau created an on online profile for himself as “Tom” living with his girlfriend and her 14 year-old daughter. He entered an internet chat room and began communicating with Lanzon. After a while the topic turned to Tom’s daughter. What ensued over the next several conversations was Lanzon’s expression about his sexual interest in the minor which turned to discussing a time and place near a motel to meet so Lanzon could act out his sexual desires. Lanzon was arrested when he approached the undercover officer at a prearranged meeting spot. Though he refused to give consent to search his truck, they used Lanzon’s key to enter the truck and seized specific items that they discussed he would bring: multi-colored condoms and mint flavored lubricant, evidence that corroborated his online conversations and his intent to engage in sexual activity.

Lanzon claimed the government failed to prove a violation of Fl. Stat. 800.04(4)(a) which he asserts criminalizes only a completed sex act. He also argued he did not take a substantial step toward completing the illegal act. The court of appeals disagreed, concluding the federal statute still criminalized the attempt to commit a sexual act even if the state statute required the completed act. Therefore even if the defendant attempted to persuade the minor to engage in illicit sexual activity but does not actually engage in the sex act, §2422 is still violated.

Published on: April 8, 2011

Statute making it a crime to operate a submersible vessel in international waters without nationality is constitutional; U.S. v. Ibarguen-Mosquera

by The Swartz Law Firm

United States v. Ibarguen-Mosquera is the latest of many Eleventh Circuit cases testing the consititutionality of a seizure of a boat by the Coast Guard on international waters. Here the seizure of this boat resulted in a Federal criminal offense. Defendants were crew members aboard a vessel described as an unmarked semi-submersible vessel in the Eastern Pacific Ocean off the coast of Colombia. The vessel was spotted sitting low in the water by the Coast Guard which sent a helicopter to investigate. As the Coast Guard helicopter began picking up crew members, the vessel sank as the crew member jumped in the water. All were charged with violations of the Drug Trafficking Vessel Interdiction Act (DTVIA), 18 U.S.C. section 2285, which makes it a federal crime to operate a submersible vessel in international waters without nationality and with intent to evade detection. The law was designed to prohibit use of vessels intended to evade detection from use in trafficking in drugs, weapons, and people.

The defendants challenged the constitutionality of the statute on four grounds:

• the enactment exceeded Article I powers • the phrase semi-submersible and intent to evade are unconstitutionally vague;

Published on: January 15, 2011

Miranda warning decision reversed; United States v. Powell

by The Swartz Law Firm

A fundamental principle of criminal law requires any law enforcement officer following an arrest to advise the arrested person of certain Constitutional rights pursuant to Miranda v. Arizona (Miranda warnings.) The police may not question the arrested person about the offense unless Miranda warnings have read to the defendant and those rights have been waived by the defendant. In United States v. Powell, the defendant claimed the arresting officers failed to read a Miranda warning and continued interrogation even though he requested counsel. The defendant filed a motion to suppress in which he sought relief by asking the judge to suppress the incriminating statements made after arrest from being admitted at trial.

The magistrate recommended granting the motion after disbelieving the two law enforcement officers’ account and believing instead the defendant and his stepfather’s account of what took place after arrest. Upon the Government’s objection to the report and recommendation, the district court reviewed the transcript and listened to a recording of the testimony, but did not hold a new hearing. The district court declined to adopt the magistrate’s findings. Later at trial, the defendant moved to reconsider that ruling but the district court denied the motion and gave the government an opportunity to supplement the record with testimony for the purpose of developing the record on appeal.

The appellate court reversed the district court’s denial of the motion to suppress. It found the district court erred in reversing the magistrate without holding a separate hearing. It found the district court erred in rejecting the magistrate’s credibility determination without first rehearing the disputed testimony live and not the recording. The matter was remanded for the disputed testimony to be reheard. Taking evidence after ruling on the motion just to bolster the evidence in the record in preparation of the appeal was not sufficient.
Continue reading

Published on: August 1, 2010

Confession to police by a 19 year old thrown out; United States v. Lall

by The Swartz Law Firm

This is one of the rare cases where a confession was thrown out. It commonly happens on television but rarely in real life, especially in federal court where the federal agents are well trained and rarely make mistakes involving Miranda warning. As demonstrated on television police must give warnings commonly known as the Miranda warnings, named after the United States Supreme Court decision Miranda v. Arizona decided in 1964 which required law enforcement to advise every person arrested of certain Constitutional rights:

Fifth Amendment right to remain silent
Any statements made can be used against the defendant in Court

Published on: June 15, 2010

Border search of a crewmember’s living quarters upheld; United States v. Alfaro-Moncada

by The Swartz Law Firm

The Fourth Amendment gives individuals the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. In this case the Eleventh Circuit Court of Appeals reviewed the search of a crewmember’s living quarters on a cargo ship by federal agents, after the boat had arrived from a foreign port. The search was upheld by the Eleventh Circuit Court of Appeals. The Court decided the search was reasonable under the Fourth Amendment given the important national security interests of a ship entering the U.S. by sea.

The boat had docked on the Miami River, its first port of entry from outside the U.S. when it was boarded by Customs and Border Protection Officers whose purpose in inspecting the vessel was to find agricultural materials that are prohibited from entering the United States.

This agricultural inspection team advised the captain after boarding the boat that they intended to search the boat from “stem to stern” beginning with the bridge. While conducting a visual inspection of a crew member’s cabin, one of the inspectors spotted a DVD he found suspicious. On closer inspection, he discovered the DVD contained child pornography. The crewman was convicted of child pornography possession.