Sex crimes and internet crimes

Published on: April 2, 2019

Solicitation of sexually explicit images from a purportedly 13-year-old girl was notice under the criminal statute

Caniff was convicted of attempting to entice a minor to engage in illegal sexual conduct, with advertising for child pornography and attempted production of child pornography. The underlying facts began with an F.B.I. agent posing as a thirteen-year-old girl on Whisper, and online website and cellphone application that allows users to text or communicate anonymously with other users. The terms of Whisper’s use provide that individuals who use Whisper must be at least 13 years of age and users between the ages of 13 and 18 must be supervised by a parent.

The agent posted a photo of another agent that was age regressed to make the person look childlike posted a message from “Mandy” the purported 13-year-old. Caniff, a 32-year-old pharmacy technician responded to Mandy and after a series of text exchanges he sent several pictures of his penis and asked her for pictures of her genitalia and of her masturbating. Eventually Mandy agreed to have sex with Caniff. When he arrived at the location they were supposed to meet, he was arrested. After Caniff waived his right to remain silent, pursuant to the Fifth and Sixth Amendments, he agreed to talk to the officers without an attorney present and said he though Mandy was 18 and she was role playing.

Published on: March 4, 2019

Civil right claim fails for a victim of a prosecutor’s defamatory statements

by The Swartz Law Firm

After serving seven years in prison for a kidnapping and rape conviction, a DNA test revealed that Echols’s DNA did not match the semen recovered from the victim. His conviction was vacated by a Georgia trial court and the local district attorney, Spencer Lawton, declined to retry the case causing it’s dismissal. A state legislator later introduced a bill to compensate Echols to compensate Echols for his wrongful convictions, but Lawton wrote a letter and memorandum to several of the legislators opposing Echols’ compensation falsely stating that Echols remained under indictment. As a result of Lawton’s correspondence, the bill failed. Echols filed a 1983 lawsuit against Lawton for violating his rights under the First and Fourteenth Amendments. The trial court dismissed the lawsuit based on its finding that Lawton had qualified immunity protection from the lawsuit.

In Echols v. Lawton, the court of appeals rejected Echols’ s appeal from the trial court’s dismissal of his claim. It agreed that Echols stated a valid claim for retaliation under the First Amendment. A claim for First Amendment retaliation requires the plaintiff to allege that he engaged in protected speech, that the official’s conduct adversely affected the protected speech, and that a causal connection exists between the speech and the official’s retaliatory conduct. Here it was alleged that Lawton retaliated against Echols by his speech to the members of the legislature. Lawton’s speech contained defamatory statements that were libel per because it falsely stated that Echols had a criminal case pending against him. The court rejected Lawton’s to invoke the First amendment protection because it does not protect an official’s defamatory speech from a claim of retaliation.

Published on: December 6, 2018

Disciplinary sanctions and Title IX procedure by Valencia College found Constitutional

by The Swartz Law Firm

The issue disputed in Koeppel v. Valencia College was whether Valencia College violated Jeffrey Koeppel’s statutory or constitutional rights when it suspended him for his harassing conduct against another student. Koeppel’s suspension followed an investigation by the Valencia Dean of Students after a “Jane Roe” lodged a complaint about messages Koeppel had been sending her. The investigation showed that he sent Jane Roe dozens of messages making lewd reference to her body and send these unwanted massages over a period of days. He continued to contact her despite her repeated pleas that he stop contacting her and after the Dean issued an order that he not contact her.

After the Dean determined that Koeppel likely violated the school’s Code of Conduct for four types of conduct prohibited by the Code, a disciplinary hearing was held by the Student Conduct Committee. At a hearing held by the Committee they reviewed the evidence of the text messages and questioned Koeppel about his messages. It concluded he was responsible for the charged conduct and suspended him for attending the college for one year.

Published on: November 5, 2018

No suspicion needed to conduct forensic search of an electronic device at the border

by The Swartz Law Firm

Touset appealed his conviction for three counts of receiving child pornography, transporting and shipping child pornography and possessing a computer and computer storage devise contain child pornography. He was arrested after his arrival on an international flight at the Atlanta Georgia airport, when a Customs and Border Protection agent inspected his luggage and found two iPhones, a camera two laptops, two external hard drives, and two tablets. The agent manually inspected the iPhones and the camera, found no child pornography and returned those devises to Touset.

But the agency detained the remaining electronic devices. A forensic search revealed child pornography on the two laptops and the two external drives. With that information agents obtained and executed a search warrant for Touset’s home in Marietta Georgia which turned up evidence showing Touset purchased thousands of images of child pornography, having sent more than $55,000 to the Philippines for pornographic pictures, videos, and webcam sessions. In some webcam sessions he instructed prepubescent girls to display and manipulate their genitals. He also created an excel spreadsheet that documented the names ages and birthdates of those young girls as well as his notes about them.

Published on: September 20, 2018

A warrantless search of a cell phone is permissible at a border entry

by The Swartz Law Firm

In this case Hernando Vergara appeals the denial of his motion to suppress evidence found on two cell phones that he carried upon returning to Tampa, Florida on a cruise from Cozumel, Mexico. The search took place in Tampa where he entered customs. Vergara had already been on the list of “lookouts” by the Customs and Border Protection officer because of a prior conviction for possession of child pornography. An individual placed on this list is subjected to secondary screen at the border, which involves additional questioning and searching.

In the secondary screening the agent found two cell phones and initially the search a few apps nothing of interest was found until the agent came upon a video which depicted topless females he believed were minors. Another agent handling criminal investigations concluded the website distributed child pornography, though the video did not meet the statutory definition of child pornography. Because the agent did not have the capability to forensically analyze the phone at the port of entry, the agent seized the phone. The data extracted from the phone revealed more than 100 images and videos of child pornography on the phone.

Published on: January 6, 2018

Search warrant for Facebook account flawed but not enough to overturn a sex-trafficking conviction

by The Swartz Law Firm

Defendants Blake and Moore were convicted of child sex trafficking two underaged girls. The case arose when FBI investigations discovered that ads for prostitution services were posted on the classified website Backpage. Moore would take phone calls from potential customers who were responding to the ads and Blake would drive the girls to their appointments and provide muscle. The money was split 50/50 between the prostitute and the Blake and Moore. The FBI learned that Backpage ads had been posted using email address which the FBI learned had belonged to Moore.

In the course of the investigation the FBI executed a seize and search warrant electronics in Blake and Moore’s townhouse however the FBI could not access the Apple Ipad tablet seized due to its security features. The FBI requested and received a district court order issued under the All Writs Act 28 U.S.C 1651(a) (the Bypass Order) requiring Apple Incl to assist the FBI in bypassing the iPad’s passcode lock and other security features. The FBI also obtained a search warrant directing Microsoft which own \s Hotmails to turn over emails from Blake and Moore’s email accounts, specifying emails linked to the sex trafficking charges. Finally, the FBI applied for and received search warrants for Moore’s Facebook account requiring disclosure of every type of data that could be found on Facebook account including every private instant messaging.

The defendant’s appeal challenged the Bypass Order on the grounds that the order exceeded the authority granted by the All Writs Act, 28 U.S.C. sec. 1651(a). Though the court of appeals did not rule on whether they had standing to challenge the writ against Apple, the court found that the defendant’s challenge of the Bypass Order failed because it was necessary or appropriate to carry out the search warrant issued, the assistance sought was no specifically addressed by another statute, the bypass order was no inconsistent with Congress’ intent, Apple was not too far removed from the underlying controversy, and the burden the order imposed on Apple was not unreasonable.

Published on: October 5, 2017

Evidence was sufficient to prove possession of child pornographic images

by The Swartz Law Firm

In U.S. v Little received multiple emails on his smart phone containing child pornography on December 21, 2013, while he was in Texas. At the time he was in Texas he opened the email and the pornographic attachments. Then Little moved from Texas to Tampa Florida to work on a shrimp boat. Before departing on the boat he emailed back and forth to a man named Dominic Hall asking for more pictures. The day after he returned from the boat trip he responded to Hall’s email by attaching a child pornographic photo. He used that same email account to send a one email containing child pornography.

Little was charged with transporting child pornography on January 26, 2013 and with possessing one or more depictions of child pornography from December 21, 2012 through January 26, 2013. Prior trial he filed a motion to dismiss both counts for improper venue which the trial court denied and following trial he moved for a judgment of acquittals as to the possession count that was also denied.

Published on: August 28, 2017

Sentence increase for past sexual acts on a minor upheld.

by The Swartz Law Firm

David Ryan Alberts was sentenced to 120 months after pleading to receiving and possessing child pornography. Albers was arrested after F.B.I. agents in Orlando Florida went to Albert’s home and where he admitted accessing and receiving and possessing child pornography as long as 15 years ago. They discovered over 160 images on his thumb drive. Albert also admitted having engaged in sexual acts with his younger relatives on different occasions when they were under the age of 12 and when he was approximately 16 years old. The PSR also said that he admitted to searching for images depicting incest and law enforcement agents found numerous incest related stories on his thumb drive. Based on his teenage sex acts with his younger relatives, the PSR assessed a five-level increase to his offense level under section 2G2.2(b)(5) of the guidelines for engaging in a pattern of activity involving sexual abuse or exploitation of a minor. This gave him a range of 135-168 months. At his sentencing, he challenged the application of this enhancement though he did not challenge the factual accuracy of this history. The district court granted the defendant’s motion for downward departure and imposed a sentence of 120 months.

Albert challenged the five-level enhancement his sentence on several grounds. First, he argued that the government did not produce sufficient evidence to justify the enhancement. But the court concluded that Alberts did not object at sentencing to the statements in the PSR regarding his past sexual activity. Furthermore, his admissions were corroborated by his long-standing preoccupation with incest and pedophilia. Therefor the appellate court found the district courts findings of fact regarding the enhancement were not erroneous.

Published on: August 20, 2017

A jury does not have to unanimously decide the type of sexual activity the defendant attempted to commit on a minor to violate federal statute.

by The Swartz Law Firm

Defendant Freeman Jockisch was indicted and convicted of a violation 18 USC §2422(b) which prohibits the use of the Internet to attempt to persuade a minor to engage in sexual activity. The indictment alleged he tried to commit rape in the second degree, sodomy in the second degree, and sexual abuse in the second degree. The indictment listed three sexual offenses under Alabama statutes, which had Jockisch consummated with the minor, would have resulted in criminal charges under Alabama state law or federal law. Jockish is a former Mobile County, Alabam Commissioner.

The defendant began an email correspondence with someone he believed to be a 15-year old girl on Craigslist and said multiple times during his emails that he wanted to make love to the young woman. Eventually they agreed to meet and when the defendant arrived at the address and time she provided, he only found police officers waiting for him.

The district court turned down a defense instructed instruction and instead instructed the jury that it only had to unanimously find the defendant knowingly used the internet to attempt to persuade the minor to engage in unlawful sexual activity and that if the sexual activity had occurred the defendant could have been charge with a criminal offense under the laws of Alabama.

Published on: July 15, 2017

An attorney’s seven-minute absence from the trial did not violate the client’s Sixth Amendment.

by The Swartz Law Firm

A three-judge panel was reversed in U.S. v Roy by the En Banc court and the defendant’s conviction in federal court in Miami was reinstated for reasons explained below. Here is what happened at the trial.

Roy was charged in a five-count indictment with sext crimes related to minor girls. Count one charged him with attempting to enticed a child base on his efforts to arrange a sexual encounter with someone he believed to be a 13-year-old girls in response to an interne ad posted by law enforcement. The other counts involved child pornography and charged him with knowingly possessing visual depictions of child pornography in violation of the federal statute. Each of those counts involved images that were stored in different electronic devices he kept. The charge required that the government prove that under each of the counts he knowingly possessed one or more images of child pornography on the electronic devices.

The issue here, which was the reason for the panel’s decision to overturn the conviction, involved Roy’s federal trial lawyer’s absence during a small a portion of the testimony of the trial.

The En Banc Court concluded that it was a Sixth Amendment constitutional violation for the trial judge to start the trial without the attorney present, but that the error was harmless beyond a reasonable doubt because of the overwhelming evidence offered while counsel was present that went to and proved the charges in counts 2 through 5, which were the only counts relevant to the testimony given during counsel’s absence. The error in the trial took place when his counsel returned a few minutes late from a lunch break on the third day of the six-day trial.