Sex crimes and internet crimes

Published on: January 12, 2022

Hotel franchise not liable to victims of sex trafficking for conduct that took place at hotels

Four Plaintiffs identified in their lawsuit as Jane Does filed a lawsuit under the Trafficking Victims Protection Reauthorization Act (TVPRA) alleging they were victims of conspicuous and open sex trafficking that occurred at hotels managed by hotel franchisors Wyndham Hotels & Resorts, Choice Hotels International, and Microtel Inn & Suites (MISF). The Plaintiffs argued the franchises should be liable under the TVPRA for benefiting financially in a venture which they knew or should have known involved sex trafficking at the Defendants’ hotels. Two of these companies, Wyndham and MISF, are franchisors that license its brand to the Microtel Inn & Suites in Atlanta, Georgia. Choice Hotels International is a franchisor that licenses its brand to the Suburban Extended Stay in Chamblee, Georgia.

Published on: January 7, 2022

Threatening messages sent to family members of victims of Marjory Stoneman Douglas shooting were not protected speech.

by The Swartz Law Firm

Brandon Fleury was posting and messaging on Instagram posing as mass murderer Nikolas Cruz, the perpetrator of the shooting at Marjory Stoneman Douglas High School (MSD), which took place on February 14, 2018, when Cruz brought a AR-15 style semi-automatic rifle into the school located in Parkland, Florida, and murdered seventeen students and faculty members. Between December 22, 2018 and January 9, 2019, Fleury used aliases like nikolas.killed.your.sister, the.douglas.shooter, and Teddykillspeople (referencing Ted Bundy) and sent victims’ family members and friends taunting and harassing messages that put them in fear for their own lives. After the messages were traced to Fleury, he was charged in federal court in the Southern District of Florida with transmitting interstate threats and cyberstalking. His charges were based on posts and messages sent to three individuals who lost loved ones in the MSD shooting. Following a jury trial, he was convicted.

Published on: December 28, 2021

A mother was sentenced to 30 years for producing child pornography and using her own two children as subjects. Worse yet, she sent it to their pedophile father.

by The Swartz Law Firm

Litzky’s live-in boyfriend, Roberto Oquendo, was a passenger in a car pulled over for a traffic stop in Melbourne, Florida. The officer conducting the traffic stop learned that he had child pornography on his phone. He gave an interview and admitted having pictures of the genital areas of his daughters for his sexual gratification. Law enforcement officers also discovered thousands of lewd images of naked children on his electronic devices. Oquendo was of course a pedophile.

Among those images were screenshots of video conversations between Oquendo and Litzky over several months where Litzky had posed the two children-victims focusing on their vaginal and buttocks area. Litzky was interviewed and eventually she confessed to sending approximately 500 hundred nude images and videos of their children to Oquendo. Litzky was charged with violating various federal child-pornography offenses and convicted.

Published on: November 16, 2021

No error in jury instructions for trial of a man who lured a minor online by posing as a female

by The Swartz Law Firm

Phillips went to trial and was convicted of a three-count federal indictment charging him with 1) persuading, inducing, and enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction, 2) receiving material containing child pornography, and possessing material containing child pornography. He argued in this appeal that the district court constructively amended the indictment which charged him with knowingly and intentionally causing a minor to engage in sexually explicit conduct for the purpose of producing a video. He claimed the trial court committed reversible error to instruct the jury that the government need not prove he knew the boy was a minor. He also argued there was a Double Jeopardy violation of the constitution because that he was sentenced for both a crime and a lesser included crime based on the same set of facts.

The federal appeals court rejected his argument that the district court constructively amended the indictment, but it agreed that he was sentenced for both a crime and a lesser included crime. Here Phillips, who is a 33-year old man went on line pretending to be a 17 or 18 year old girl on a social media website where he met a minor boy.

Published on: November 9, 2021

Conviction and life sentence for sex trafficking a minor and adults upheld as reasonable in light of the evidence

by The Swartz Law Firm

Williams appeals his conviction and sentence by a federal judge for the federal offense of sex trafficking involving a minor, and two adults. The evidence presented at his trial showed Williams used physical abuse and emotional manipulation to force vulnerable young women to work for him as prostitutes. The evidence was graphic because the women who worked for Williams described Williams’ violent behavior and punishments. He was sentenced to five terms of life imprisonment and ordered to pay restitution to his victims. In his appeal he raised three issues.

Published on: November 2, 2021

Conviction for crossing state lines to sexually abuse a minor upheld against Fourth Amendment challenge and claim of Government misconduct

by The Swartz Law Firm

Castaneda appealed his conviction for enticing a minor to engage in unlawful sexual activity in violation of 18 U.S.C. §2422 and one count of crossing a state line with intent to engage in sexual activity with a person under the age of 12, in violation of 18 U.S.C. §2241(c). Following a federal jury trial, he was convicted of both counts and sentenced to 420 months. In his appeal he argued the indictment should have been dismissed because the government’s conduct in investigating him was so outrageous that it violated his due process rights. He also claimed the evidence of child pornography that was found on his computer should have been suppressed and not admitted at trial. Though he was not indicted with possession of child pornography, the evidence that he possessed it was admitted at his trial to prove his intent.

Law enforcement began its investigation when he responded to an ad on Craigslist from a purported 37- year-old female in Atlanta, Georgia who was “looking for someone with experience with REAL taboo to be a good teacher” for her 9-year-old daughter. Castaneda grabbed the bait and began communicating with Kandi, telling her he was experienced in “incest, pedophilia, and grooming” and went on about his own experiences with minors. Kandi responded that she had a 9-year-old daughter “wanting to learn more and looking for someone with experience like you.” It turned out that Kandi was an undercover law enforcement officer, and not the mother of a 9-year old, who had posted the ad on Craigslist.

Published on: January 28, 2021

Prior state court sex offense qualified as an enhancement for federal child pornography conviction

by The Swartz Law Firm

Jason Kushmaul was indicted by a federal grand jury on two counts of distributing child pornography and with possessing material containing child pornography involving a minor under the age of 12 in violation of 18 U.S.C. section 2252A. He was arrested in Florida by Bay County Sheriff Officer who went to his address based on a tip obtained by Homeland Security that he was distributing child pornography through an App known as Kik. Kushmaul was already registered on the Florida Sex Offender Registry having been previously convicted in Florida of promoting the sexual performance of a child. He pled guilty to the federal offense. The federal statute, Section 2252A, enhances the mandatory minimum from 5 years to 15 years if the offender has a prior conviction under the laws of any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor. The sentencing court found that his 2016 Florida conviction “promoting the sexual performance of a child” qualified as a prior conviction that triggered the sentencing enhancement and imposed a 15-year sentence.

Published on: January 8, 2021

Sex offender’s challenge to Florida’s registration requirement barred by statute of limitations

by The Swartz Law Firm

McGroarty sued the Florida Department of Law Enforcement claiming a violation of his substantive due process rights under the Fourteenth Amendment of the U.S. Constitution. McGroarty’s federal lawsuit alleged that the FDLE violated his rights by continuing to publish his personal identifiable information on FDLE’s sex offender registry website even after he had completed a ten year probation for a sex crime and was no longer subject of Florida’s registration laws.

When McGroarty lived in Florida his Florida conviction as a sex offender required him to register there. He then moved out of Florida to California where he lived while he completed his Florida probation. Eventually he moved to North Carolina, and eventually Florida notified him after he completed his probation that he had to continue registering in Florida as a sex offender. Thereafter, Florida maintained information about McGroarty on its online database, including his photograph, pursuant to Florida’s sex offender registry law, Fla. Stat. section 943.0435. In his lawsuit, McGroarty claimed that Florida lost jurisdiction to enforce compliance with its sex offender registry statute after he moved to California in 2004 because he was no longer a resident of Florida. The district court dismissed his lawsuit as time barred under the statute of limitations.

Published on: December 3, 2020

Prosecution statements not reversible; restrictions against using the internet not a First Amendment violation

by The Swartz Law Firm

Bobal was indicted by a grand jury on two counts of using a means of interstate commerce to attempt to persuade a minor to engage in sexual activity in violation of 8 U.S.C. sec. 2422(b) and committing a felony offense involving a minor after being required to register as a sex offender in violation of 18 U.S.C. sec. 2260A. Bobal had a prior conviction in Florida for using a computer to solicit a child to engage in sexual activity. His trouble began when he sent a picture of his penis to a man posing as a 14-year old girl. The F.B.I. got involved and an agent posing as the 14-year-old girl began exchanging text messages with Bobal which were sexual in nature and eventually arranged a meeting. When Bobal arrived at the meeting location he was arrested.

Published on: May 31, 2019

Defendant’s conduct in a foreign country can be used to enhance the sentence

by The Swartz Law Firm

In this appeal Anthony Spence was charged with knowing transportation of child pornography in violation of 18 U.S.C. 2252A(a)(1) and knowing possession of child pornography in violation of 18 U.S.C. 2252A(a)(5)(B). He was found guilty after trial. In calculating his federal sentencing guidelines range the probation officer recommended an increase for a number of factors. The factor at issue here was a two-level enhancement for distribution which Spence stated took place while he was in Jamaica. In this appeal he argues that his distribution of the videos while in Jamaica should not have affected his guidelines calculation. He argued that by including his out of country conduct in the calculation of his offense level the district court violated the principle that legislation of Congress should apply only within the United States unless a contrary intent appears. Spence was relying upon a canon of statutory construction known as the presumption against the application of congressional statutes to conduct occurring in the territory of a foreign sovereign. He argued that the distribution of videos occurring solely in Jamaica should not have been considered by the district court.

As an issue of first impression, the court of appeals saw the issue as whether the presumption against the extraterritorial application of congressional legislation should be extended to apply also to preclude a sentencing judge from considering extraterritorial conduct which would otherwise be properly considered as relevant conduct.