White Collar Criminal Defense Lawyer Blog

Published on: June 30, 2010

Free Speech does not protect an internet conversation involving an attempt to sexually molest a minor; United States v. Farley

The computer sex crimes have been the focus of federal law enforcment due to the number of sexual predators using the internet to make contact with potential victims. In this case a Texas resident began an on-line relationship with a person whom he believed was the mother of an 11 year old girl. The mother expressed an interest to the defendant in having the defendant engage in sexual conduct with the daughter. The person posing as the mother turned out to be an undercover police officer. The 11 year old girl was fictitious.

The defendant had a non-jury trial before the district court judge. He was convicted. At sentencing the district court judge determined that the 30 year mandatory minimum sentence required by the statute (Adam Walsh Act) was in violation of the 8th Amendment as applied to this defendant who was a first offender, a husband, and a father of five.

Several issues were raised in this lengthy opinion.
• the appellate court rejected the argument that the prosecution infringed on the defendant’s right to free speech and
• that it was legally impossible for him to be guilty since there was no actual child.
• The court rejected the defendant’s claim that his post-Miranda statements should have been suppressed because his rights waiver was obtained by deceit (the officer told him that their questioning was regarding a national security/terrorism matter.)

Thirty-year mandatory sentence was not grossly disproportionate and not in violation of the Eighth Amendment. The appellate court reversed the district court’s ruling regarding the Constitutionality of the 30 year mandatory sentence. The court of appeals relied on Harmelin v. Michigan, 501 U.S. 957 (1991) which held that the 8th Amendment does not require strict proportionality between crime and sentence. It only forbids extreme sentences that are “grossly disproportionate” to the crime of conviction.
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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.

Published on: May 31, 2010

Federal sentencing guidelines enhancement for abuse of trust was reversed; United States v. Ghertler

by The Swartz Law Firm

In United States v. Ghertler, the defendant pled guity to a federal criminal indictment charging federal crime of fraud against seven victim companies. The Presentence Investigation Report included relevant conduct that the defendant committed fraud on a total of 14 companies. The defendant appealed the sentence, objecting to the loss calculations, the number of victims and he raised an objection to the abuse of trust, sophisticated means, and the obstruction of justice enhancements.

The appellate court upheld the sentence, noting that the following factors under 18 United States Code §3553(c)(1) were mentioned by the sentencing judge:

• the defendant’s criminal history,