Sex crimes and internet crimes

Published on: April 9, 2012

Conviction and 320 month sentence for engaging in and recording sexually explicit conduct with minors

In U.S. v. Lebowitz the defendant was charged with producing child pornography in violation of 18 U.S.C. §2251(a) and one count of attempting to entice a child to engage in unlawful sexual activity in violation of 18 U.S.C. §2422. Lebowitz began communicating with a15 year old boy male, K.S. on MySpace who falsely claimed to be 17 or 18 years of age. Lebowitz identified himself as a 47 year old doctor and began chatting on line with K.S. The conversations became sexual in nature, with the defendant sending K.S. a nude photograph of himself. At that point K.S. informed the defendant his true age of 15. After a day of chats, K.S. informed his mother, who called the defendant and told him to stop contacting her son. He did not and the mother contacted law enforcement. With the approval of the county sheriff office, K.S. continued corresponding with the defendant, informing the defendant his true age was 15. Meanwhile, the defendant expressed an interest in pursuing a sexual relation with K.S, a minor.

When the defendant arrived at K.S.’s house, he was arrested. After the arrest, the officer searched his car and found incriminating evidence including condoms, lubricant, and sleeping bags. The officer obtained a search warrant of the defendant’s residence where they seized a VHS tapes engaged in sexual activity with the defendant: one showed a male A.G. aged 16 and the other showing C.R. age 15.

The 11th Circuit upheld the denial of Lebowitz’ Fourth Amendment challenge to the car search. The court held that assuming the search violated the Fourth Amendment, the good faith exception applied because the officer “relied” on the binding 11th Circuit precedent at the time of the search, which allowed a search incident to a recent occupant’s arrest regardless of the occupant’s ability to access the passenger compartment.

Published on: February 28, 2012

Fifth Amendment protects witness subpoenaed to appear before a grand jury to decrypt contents of his computer hard drive

by The Swartz Law Firm

In U.S. v. John Doe the 11th Circuit came down on the side of a person’s Fifth Amendment right not to incriminate himself. Doe was held in civil contempt for failing to comply with a subpoena duces tecum requiring him to appear before a grand jury and produce the unencrypted contents of Doe’s laptop computers and five external hard drives. Basically the subpoena wanted Doe to decrypt and produce the contents of the computer hard drive and the external hard drives that had been seized during the course of a child pornography investigation. Law enforcement had linked the computer to Doe through IP addresses. Because the forensic examiners were unable to view the encrypted portions of the hard drives, a grand jury subpoena was issued to Doe requiring him to decrypt the contents of the computer hard drives.

When Doe advised the U.S. Attorney that his compliance with the subpoena would violate his Fifth Amendment privilege against self incrimination, the U.S. Attorney applied to the district court for immunity under 18 U.S.C. section 6003 but it limited the immunity to the use of Doe’s act of production of the unencrypted contents of the hard drive. The limited immunity would not extend to the derivative use of the contents of the hard drives as evidence against him in a criminal prosecution. The district court decided that the government’s use of the unencrypted contents in a prosecution against Doe would not constitute derivative use of compelled testimony because the district court believed the act of production did not constitute giving testimony.

The 11th Circuit disagreed, holding that Doe’s decryption and production of the hard drive contents triggered a Fifth Amendment protection because it would be testimonial. It would not be a mere physical act. The decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control and access to the encrypted portions of the drive; and of his capability to decrypt the files.

Published on: February 27, 2012

Mandatory minimum sentence reversed because prior rape convictions did not qualify as violent felonies under the Armed Career Criminal Act.

by The Swartz Law Firm

In U.S. v. Owens the defendant pled guilty to being a felon in possession of a firearm and his sentence was enhanced because the district court determined his prior convictions under Alabama law for second degree rape and second degree sodomy qualified as a violent crime under the Armed Career Criminal Act (ACCA) which mandates a 15 year minimum sentence for any convicted felon who possesses a firearm after having been convicted of three violent felony or serious drug offenses. The ACCA is a commonly used in Florida federal courts.

A violent felony is defined as a felony which “has as an element the use, attempted use, or threatened use of physical force against the person or another; or is a burglary, arson, or extortion or involves explosives or otherwise involves conduct that represents a serious potential risk of physical injury to another.” The court first examines whether the offense is a violent felony under the elements clause, which provides that the offense has as an element the use of physical force; second, whether the offense is one of the enumerated crimes; and third, whether it is an offense under the residual clause. The residual clause analysis requires the categorical approach: examining the offense in terms of how the law defines the offense and not in terms of how an individual offender might have committed the offense.

Owens had ten convictions for Class B felonies of rape and sodomy in the second degree. Under the Alabama statutes for these offenses, it is a crime to engage in sexual intercourse with a member of the opposite sex who is less than 16 years, so long as the offender is no more than two years older than the victim. The district court enhanced the sentence under the ACCA and imposed a sentence of 293 months relying on the 11th Circuit precedent in U.S. v. Ivory, 475 F.3d 1232, which found these Alabama offenses were violent felonies because they involved the use of physical force against the person of another. In Owen’s first appeal to the 11th Circuit his sentence was affirmed under Ivory.

Published on: February 7, 2012

Constitutional challenge to child pornography law failed but restitution order to victim vacated for proximate cause hearing

by The Swartz Law Firm

The defendants in U.S. v. McGarity were convicted following trial of engaging in child exploitation enterprise (CEE) 18 U.S.C. 2252A(g), receiving child pornography, 2252A(a)(2), and conspiracy to transport, receive, and possess child pornography, 2251(d)(1). The arrests grew out of a tip to Australian police of a child pornography ring operating through an internet newsgroup. After following the ring’s operation, the police learned that members of the newsgroup were allowed in only after completing certain tests designed to weed out law enforcement infiltrators. Members accepted into the newsgroup were given an encryption key allowing them to post texts, communicate with one another, and post child pornography.

The defendant challenged the constitutionality of 18 U.S.C. 2252A(g) on the grounds that certain terms in the statute are vague and overbroad, specifically the term “series” in “as part of a series of felony violations” and the phrase “three or more separate incidents.” Because the 11th Circuit rejected a vagueness challenge in U.S. v. Wayerski, 624 F.3d 1342 (11th Cir. 2010) the 11th Circuit disposed of this issue finding the same reasoning applied to this case. The statute survived a facial vagueness challenge because it was “clear what the statute as a whole prohibits” and is clear to a person of ordinary intelligence that 2252A(g)’s plain language prohibits “the commission of specified child pornography offenses that occur as a series of three or more separate instances, involving two or more victims, and three or more persons acting in concert with the defendant.”

One defendant challenged his sentencing enhancement for obstruction of justice. When agents sought execute a search warrant at the defendant’s home, the agent’s knock and announce request was ignored for about 30 minutes. After entry was finally gained, agents found him running a destructive wipe program on his computer. The Court upheld the sentencing guidelines enhancement for obstruction because the agents could not gain access to the defendant’s home with a search warrant and found the defendant running the wipe program. Proof was sufficient to warrant the enhancement.

Published on: January 25, 2012

Use of LimeWire for sharing child pornography could not justify federal sentencing guidelines enhancement.

by The Swartz Law Firm

In U.S. v. Vadnais, the 11th Circuit found that a file sharing program does not support a five level sentencing guidelines enhancement and reversed the sentencing. Another panel reached the same conclusion in U.S. v. Spriggs three days earlier involving the software Shareaza 2.0. Vadnais’ 240 months sentence for receiving child pornography included a guidelines enhancement under sentencing guidelines §2G2.2(b)(3)(B), which provides for the enhancement if the offense involves a distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value.” Vadnais obtained his illicit images over the internet by using LimeWire, a peer-to-peer file sharing software.

Analyzing the sentencing guideline issue, the 11th Circuit noted the commentary defines the 5 level enhancement of 2G2.2(b)(3)(B) as ‘any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” A “thing of value” can include the receiving child pornography “bartered” or in exchange for other child pornography. On this basis, the five level enhancement could apply to a defendant engaging in this activity. Vadnais argued that using the peer-to-peer file sharing software in a way that allowed others to obtain child pornography files from his shared folder did not support the enhancement.

The opinion spends time analyzing how peer to peer software works. The software networks are so named because they allow computers to communicate directly with each other without going through central servers. The software permits users to search for files located in the shared folders on other computers. When found, the requesting user can download the file directly from the other computer. The 11th Circuit found that the LimeWire software encourages users to share files. Its default settings make all files that a user downloads through LimeWire available to other LimeWire users to download.

Published on: January 16, 2012

No sentence enchancment for using a peer to peer file sharing program for downloading child pornography

by The Swartz Law Firm

In U.S v. Spriggs, Spriggs pled guilty to receipt of child pornography and sentenced to a five level enhancement for distribution of the illegal images for the receiving or expecting to receive something of value under USSG §2G2.2(b)(3)(B). Spriggs kept his child pornography collection in a peer to peer file sharing program called Shareaza 2.0. that could be accessed by other Shareaza users. Spriggs also downloaded the child pornography using the Shareaza program. The default settings on Shareaza 2.0 automatically provided for reciprocal sharing and required extra steps if a user did not want to share files with others using the program. The copy on Sprigg’s computer was rigged to allow peers to download files from his computer. The sentencing judge reasoned that Spriggs distributed the child pornography with the expectation that he would receive either more child pornography or could down load it faster. Law enforcement tried but was unsuccessful in its attempt to download the defendant’s files. There was no evidence showing that other users downloaded files from Spriggs child porn collection.
The 11th Circuit found that Spriggs’ distribution of child pornography is not enough to apply the 5 level enhancement under USSG §2G2.2(b)(3)(B). The distribution must be for the receipt or expectation of receipt of a thing of value. Though the 8th Circuit has applied the enhancement when using the file sharing network to distribute and access child pornography files, the 11th Circuit disagrees with that result. File sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares files. Files are free. The mere use of a program that enables free access to files does not, by itself, establish a transaction that will support a five-level enhancement.

The 11th Circuit refused to follow an 8th Circuit’s decision finding that file sharing programs gave the defendant and expectation of value. Spriggs’ hope that a peer would reciprocate his generosity does not amount to a transaction conducted for “valuable consideration.” There was no evidence that Spriggs entered into a transaction with another user in which he shared his child pornography to gain access to another person’s child pornography. Without evidence that Spriggs and another made a promise with each other to share their illicit collection of images on the file sharing program, this was not a transaction whereby Spriggs expected to receive more pornography. The fact that Spriggs expected to receive faster downloading capabilities when he shared his files was a transaction between he and the software developer but this was not a “for value transaction” between Spriggs and other child porn collectors. There was no evidence that there was downloading priority given to Shareaza 2.0 users which would then allow someone like Spriggs to download child pornography faster. The record did not support a conclusion that Spriggs entered into a child pornography distribution transaction with the expectation he would receive a thing of value.

Published on: December 16, 2011

Requiring a defendant convicted of a non sex offense to register under SORNA for a pre-SORNA prior sex offense conviction did not violate the Ex Post Facto Clause.

by The Swartz Law Firm

In U.S. v. W.B.H. the defendant was convicted of federal drug conspiracy. His sentence included a condition of his supervised release that required him to register as a sex offender under Sex Offender Registration and Notification Act (SORNA) because he had a 20 year old Alabama conviction for first degree rape. The rape conviction occurred in 1987, well before enactment of SORNA in 2006. He was 18 at the time of the rape and given 3 years probation under Alabama law, which at the time did not require that he register as a sex offender. W.B.G. challenged the supervised release condition under the Ex Post Facto Clause of the Constitution, which forbids Congress and the states from enacting “any law which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed.”

Supreme Court case law holds that the Ex Post Facto bar applies only to criminal laws and not to civil regulations. The 11th Circuit turned to Smith v. Doe, 538 U.S. 84 (2003) the leading case in determining whether a statute is criminal or civil and non-punitive.

The facts in Doe are similar to the facts in W.B.G.’s case. Doe involved a defendant convicted of a sex offense who was required to register as a sex offender under the Alaska Sex Offender Reporting Act. There Doe made an Ex Post Facto challenge of the Alaska Sex Offender law because it was enacted after the sex offense conviction. The Supreme Court found it did not violate the Constitution because the primary purpose was not to impose a civil and regulatory scheme and not punishment. The Doe analysis first requires the court to determine if the intent of the legislation was to impose punishment. If so, the inquiry ends. The 11th Circuit determined that the statute has a civil purpose. Congress intended to enact a civil regulatory scheme whose purpose was to protect society from sex offenders and to keep law enforcement informed about sex offenders in their jurisdiction.

Published on: November 14, 2011

Enhanced sentence for distributing child pornography to a minor reversed because the government failed to prove the person to whom it was sent was in fact a real child

by The Swartz Law Firm

The court of appeals held that the 5-level enhancement for distributing child pornography to a minor requires proof it was intended for an actual child or a fictitious child created by law enforcement. In U.S. v. Fulford, the Defendant was convicted of possessing and distributing child pornography and given a 5 level enhancement under sentencing guidelines section 2G2.2(b)(3). According to the presentence investigation report (PSR), Fulford entered into an on-line chat room with children to whom he distributed child pornography. At sentencing, the district court made a fact finding which showed that Fulford chatted over the internet with a person named “Dawn” who claimed she was a 13 year old female. Because the court found the defendant sent child pornography to Dawn, who he believed to be a minor, it applied the 5 level increase even though the sentencing court did not make a finding about whether Dawn was actually a minor. Fulford objected to this enhancement arguing that the government never proved that Dawn was in fact a minor, as defined by the guidelines, and the enhancement did not apply.

The government did not show that any of the individuals whom he sent images were in fact minors. The government argued that the evidence showed he distributed child pornography to a minor based on the user’s name and purported age. The government also argued that regardless of her actual age and identity, it was sufficient to apply the enhancement if the government can show the defendant thought she was a minor and intended to distribute the child pornographic images to her. At sentencing the government offered testimony from its case agent that an examination of his computer showed that Fulford exchanged images with people who, the agent inferred, were minors. Yet there was no proof any were in fact minors.

Under the definition of a “minor” given under this guidelines enhancement, Dawn would have to be one of the following:

Published on: May 5, 2011

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

by The Swartz Law Firm

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: March 30, 2011

Statute prohibiting child pornography production held constitutional under First Amendment; United States v. Dean

by The Swartz Law Firm

In U.S v. Dean the defendant challenged the constitutionality of a federal prosecution under the statute 18 U.S.C. §1466A(a)(2). The defendant claimed the statute prohibiting production of child pornography is overbroad because it criminalizes materials that are neither child pornography nor obscene and therefore criminalizes materials protected by the First Amendment.

Internet crimes such as this case are commonly prosecuted under Section 1466A(a)(2), which prohibits possession, production or distribution of;
• a visual depiction of any kind, including a drawing, cartoon, sculpture or painting
• that depict an image that is or appears to be a minor engaged in sexual activity and
• “lacks serious literary, artistic, political, or scientific value.”
Under Ashcroft v. Free Speech Coalition a statute is facially overbroad if it criminalizes materials that are neither child pornography nor obscene, in other words if a substantial amount of material is protected speech under the First Amendment. Child pornography is not protected by the First Amendment because it is produced using minors and because the government has an interest in criminalizing the sexual abuse and exploitation of children.

The Eleventh Circuit acknowledges the statute has the potential to be overbroad because it includes material that does not involve actual children. The defendant however could not meet his burden of showing that the statute criminalizes a substantial amount of protected expressive activity.

The defendant was unable to identity protected materials, let alone a substantial number of these materials. The defendant gave as an example the movie “Lolita” (showing scenes of minors engaged in explicit sexual conduct using youthful actors or visual images) but that was rejected by the Court because it possess literary value that takes it beyond the reach o the statute.

The Court concluded that the defendant cannot meet his burden because there are few materials which depict children engaging in graphic sexual conduct and lack serious value, without also qualifying as obscenity. “Because the statute targets only specific, graphic sexual activity and because the statute targets only images that lack serious literary, artistic, political, or scientific value, the category of protected materials which are prohibited by the statute is very narrow.” The Court determined that the protected material prohibited by the statute pales in comparison to the statute’s legitimate sweep.
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