Orlando Criminal Defense Blog

The case of United States v. Spriggs, 23 Fla. L. Weekly Fed. C692 (11th Cir. January 10, 2012) considered an appeal which raised an issue that has resulted in significant increases of the sentencing guidelines in child pornography cases.

Specifically U.S.S.G. § 2G2.2(b)(3)(B) calls for a five level enhancement under the sentencing guidelines if it is established that the defendant distributed child pornography for the receipt or expectation of receipt of a thing of value.

The trial court imposed a five level enhancement under U.S.S.G. § 2G2.2(b)(3)(B). The court's rationale was that the use of a file sharing program which allows for the sharing of downloaded files justified the enhancement because it was done with the anticipation of receiving child pornography from other computers that utilized the same file sharing program.

The defendant contended that there was no evidence that he distributed child pornography for the receipt or expectation of receipt of a thing of value as is required under the sentencing guidelines.

The Eleventh Circuit found that while there was evidence that Spriggs had distributed illicit images, there was insufficient evidence to support the other elements of the five level enhancement.

The Eleventh Circuit discussed the case of United States v. Stults, 575 F. 2d 834, 849 (8th Cir. 2009) and disagreed with the ruling that file sharing programs enable users to swap files and therefore, no additional evidence was required to impose the five level enhancement.

The Eleventh Circuit noted that file sharing programs are designed to promote free access of information, not for a form of bartering. The exchange of information contained on various computers that utilize the file sharing program is free.

The Eleventh Circuit further noted that the transactions contemplated by the guidelines involve conduct for valuable consideration and therefore, the use of a program that enables free access to files does not in and of itself establish a transaction sufficient to support the five level enhancement in U.S.S.G. § 2G2.2(b)(3)(B).

The impact of file sharing programs in child pornography cases has resulted in the application of U.S.S.G. § 2G2.2(b)(3)(B) thereby greatly increasing the sentence. This Eleventh Circuit case provides a glimmer of hope to defense counsel in trying to mitigate the overly harsh sentences that are imposed by many judges confronted with computer child pornography.

The case of United States v. Spriggs, 23 Fla. L. Weekly Fed. C692 (11th Cir. January 10, 2012) considered an appeal which raised an issue that has resulted in significant increases of the sentencing guidelines in child pornography cases.

Specifically U.S.S.G. § 2G2.2(b)(3)(B) calls for a five level enhancement under the sentencing guidelines if it is established that the defendant distributed child pornography for the receipt or expectation of receipt of a thing of value.

The trial court imposed a five level enhancement under U.S.S.G. § 2G2.2(b)(3)(B). The court's rationale was that the use of a file sharing program which allows for the sharing of downloaded files justified the enhancement because it was done with the anticipation of receiving child pornography from other computers that utilized the same file sharing program.

The defendant contended that there was no evidence that he distributed child pornography for the receipt or expectation of receipt of a thing of value as is required under the sentencing guidelines.

The Eleventh Circuit found that while there was evidence that Spriggs had distributed illicit images, there was insufficient evidence to support the other elements of the five level enhancement.

The Eleventh Circuit discussed the case of United States v. Stults, 575 F. 2d 834, 849 (8th Cir. 2009) and disagreed with the ruling that file sharing programs enable users to swap files and therefore, no additional evidence was required to impose the five level enhancement.

The Eleventh Circuit noted that file sharing programs are designed to promote free access of information, not for a form of bartering. The exchange of information contained on various computers that utilize the file sharing program is free.

The Eleventh Circuit further noted that the transactions contemplated by the guidelines involve conduct for valuable consideration and therefore, the use of a program that enables free access to files does not in and of itself establish a transaction sufficient to support the five level enhancement in U.S.S.G. § 2G2.2(b)(3)(B).

The impact of file sharing programs in child pornography cases has resulted in the application of U.S.S.G. § 2G2.2(b)(3)(B) thereby greatly increasing the sentence. This Eleventh Circuit case provides a glimmer of hope to defense counsel in trying to mitigate the overly harsh sentences that are imposed by many judges confronted with computer child pornography.

In 1987 Congress passed sentencing guidelines establishing the maximum and minimum punishments that people should receive for federal crimes. The guidelines take into account the severity of the crime and the defendant's past criminal record to come up with a suggested sentence. However, there are certain factors that will allow a judge to make a downward departure from the suggested minimum sentence for a federal criminal offense.

What Is a Downward Departure?

A downward departure is when the judge gives a defendant a sentence that is lower than the minimum sentence suggested by the guidelines. The court may grant a motion for a downward departure by either the prosecuting or defense attorney if the court believes that justice demands it.

When Does a Defendant Receive a Downward Departure?

Some of the reasons that a judge would give a defendant a downward departure in a sentence are:

• If the defendant offered substantial assistance to the government in its investigation of the crime
• If the defendant voluntarily disclosed the offense
• If the defendant accepted responsibility for the offense
• If the defendant committed the offense with diminished capacity
• If the defendant was coerced or under duress when committing the offense
• If the defendant's age means that the sentencing guideline minimum would effectively be a life sentence
• If the defendant has a history of good works or charitable efforts
• If the criminal behavior was "aberrant" for the defendant
• The totality of the circumstances call for a downward departure

In accord with the requirements of the Dodd-Frank Act, the Securities and Exchange (SEC) Commission opened an Office of the Whistleblower in August 2011 to act as a central location to collect tips about those violating securities laws. The Office also has a webpage that outlines how people can submit tips to the office about potential securities fraud and the eligibility for collecting a reward for information a person submits to the SEC.

The Dodd-Frank Act provides the SEC authority to give those who report any securities law violations a monetary reward if the tip leads to a successful SEC enforcement action with sanctions of at least $1 million. A person's reward can be anywhere between 10 and 30 percent of the total sanctions the S.E.C. issues. Before the Dodd-Frank Act went into effect, the SEC could only reward those who offered information on insider trading.

The SEC press release about the new whistleblower program cited several positive benefits that will stem from the program:

• Better tips
• More timely information
• Maximization of outside resources
• Stronger protections against retaliation for those who report violations
• Stronger internal compliance for those companies in the securities industry

The case of Barrios v. State, 36 Fla. L. Weekly D2614a (Fla. 4th DCA November 30, 2011) is an appeal from convictions of three counts relating to mortgage fraud.

The defendant was convicted of attempting to obtain a mortgage loan by false representation, grand theft in the first degree and providing false information to defraud a financial institution. During the trial, the defense moved for judgment of acquittal. The court reduced one of the counts from obtaining a mortgage by false representation to an attempt to obtain said mortgage.

The appellate court found that the trial court committed error in not granting the motion for judgment of acquittal as to the grand theft charge and failing to grant the motion for judgment of acquittal as to the obtaining a mortgage by false representations.

At the trial, the state established that Barrios had obtained a $315,000 mortgage to purchase land and build a home. In the loan application, Barrios represented that his monthly income was $8,900. Throughout the course of the application for the loan, this false information was provided on three separate occasions. Twice on loan applications and once at the closing. The state was able to prove that the defendant earned significantly less than the $8,900 per month represented to the lender.

The court examined Fla. Stat. § 817.54 (2009). That statute provides that a person who, with intent to defraud, obtains a mortgage, promissory note or other instrument evidencing a debt by aid of fraudulent or false representations or pretenses, violates the statute.

The appellate court noted that to prove the crime there must be evidence of the victim's reliance on the defendant's misrepresentations. Citing to Adams v. State, 650 So. 2d 1039, 1041 (Fla. 3d DCA 1995). That case noted that Fla. Stat. § 817.54 criminalizes a specific form of false pretenses. It further held that the victim's reliance on the false or misrepresented information is an essential element of the offense.

In Barrios, the state could not establish that the lender relied upon the false statements concerning monthly income.

The appellate court held that the trial judge committed reversible error by failing to grant a judgment of acquittal on that account and by allowing that count to go to the jury under the charge of attempting to obtain the mortgage fraud by false representation. The court noted that because there was no proof of reliance and the loan was completed, the judgment of acquittal should have been entered without reducing the original charge to attempt.

Other district courts have ruled that reliance on misrepresentation by the victim is an essential element of mortgage fraud. See. Grant v. State, 43 So. 3d 864, 868-69 (Fla. 5th DCA 2010); Pizzo v. State, 910 So. 2d 287, 293 (Fla. 2d DCA 2005).

In analyzing the criminal attempt, the court noted that an attempt to commit a crime requires three elements. The first, the intent to commit a crime, second, an overt act towards its commission and third, failure to successfully complete the crime. Citing to, Bist v. State, 35 So. 3d 936, 941 (Fla. 5th DCA 2010). The court then noted that there was no evidence that the crime was not completed. The evidence established that the crime was completed because the mortgage was obtained. The problem confronted by the prosecution was that there was a lack of proof of reliance by the lender.

The grand theft conviction was also reversed because the state did not provide evidence that the appellant intended to deprive the victim of its property at the time of taking. The appellate court rejected the state's contention that by overstating his monthly income the defendant never intended to pay back the mortgage.

This case is significant due to the revelations of misconduct by many in the lending business during the real estate boom leading up to the recession. Many lenders were not interested in anything other than making the loans and took no action to review or even consider the amount of the stated income. This conduct resulted in certain lenders being subject to regulatory scrutiny and adverse actions. In a mortgage fraud case, the requirement of proving reliance by the lender on information in the application as to income, may be a viable defense.

The criminal consequences of a DUI arrest involve a case in county court or in circuit court in the event of a third DUI within ten years. The administrative side of a DUI involves the Department of Highway Safety and Motor Vehicles. Civil and criminal consequences of a DUI arrest can result in a person's drivers license being suspended.

In order for a drivers license to be suspended in a criminal court case, a person must either accept a plea that results in their drivers license being suspended or they must be found guilty after trial and the judge order that their drivers license be suspended.

When it comes to the administrative side, a person loses his or her driver's license as the result of either refusing to submit to a breath, urine or blood test or by blowing a .08 or higher. If a person wants to try to have the suspension invalidated, they must request a formal administrative hearing within ten days of being arrested.

Attorneys often subpoena the arresting officer to appear at the formal administrative hearing where they can be cross-examined and the hearing officer can decide whether or not to invalidate the suspension.

In the past, if the officer was subpoenaed and did not appear for the formal administrative hearing, the hearing officer would often invalidate the suspension. For the most part, hearing officers are now refusing to invalidate a suspension simply because the officer did not appear pursuant to the subpoena.

Now more than ever it is important to determine what advantage if any, there is to subpoena an officer in a particular case. If the officer does not appear at the formal administrative hearing, then he is bound by whatever information he provided in his reports, as well as any deficiency found in the required paperwork. Therefore, it is essential that those reports or documents be carefully reviewed to determine if they are sufficient to support the suspension. If the reports do not clearly establish that the person driving was the person that refused the breath test, if that refusal is not sworn or attested to or if the reports are deficient in some other way, then an attorney has grounds to ask the hearing officer to invalidate the suspension. If the officer does not appear at the formal administrative hearing, then the case lives and dies by the contents and omissions from the documents available to the hearing officer.

This summer, the U.S. Supreme Court decided Bullcoming v. New Mexico, the latest of a series in cases dealing with the Confrontation Clause of the Sixth Amendment. By a 5-4 vote, the Court held in Bullcoming that it is a Confrontation Clause violation to admit a forensic lab report into evidence that includes testimonial assertions through the in-court testimony of an analyst who did not sign the report or personally witness the test.

Facts of the Case

Police accused the defendant in the case, David Bullcoming, of aggravated drunk driving after he ran into the back of another vehicle and then left the scene of the accident. Lab results showed Bullcoming's blood alcohol content to be three times the legal limit. When Bullcoming's trial began, the lab analyst who had performed Bullcoming's BAC test was on unpaid leave, so the prosecutor asked a different lab analyst to testify about the test so that the report would be admitted into evidence.

The Court's Reasoning

In Melendez-Diaz v. Massachusetts, the Court held that forensic reports are "testimonial," bringing them under the purview of the Confrontation Clause and thus requiring the authors of the reports to take the stand in order for the defense to have an opportunity to cross examine them. The question the Court considered in Bullcoming flows from the decision in Melendez-Diaz: does the lab analyst who actually performed the test need to be the one who testifies, or may another analyst testify?

This summer, the Lake County Sheriff's Office conducted a six-day sting operation they called Operation Summer Nights, which resulted in the arrest of 32 men whom police allege intended to have sex with a child. Officers timed the sting to correspond with the beginning of summer vacation from school for many children.

The arrestees came to a vacation home police rented in south Lake County, FL after corresponding online with police for a week, believing them to be children aged nine to 14 years or the parents of such children. The suspects' ages ranged from 19 to 63 and none of them were registered sex offenders. Many of them came from the greater Tampa and Orlando areas but some traveled from as far as Georgia and Texas.

The Lake County Sheriff's Office's cyber crimes team organized the operation. The team has been in existence for a few years and this is its largest sting to date. Law enforcement officials from several surrounding counties collaborated with the cyber crimes team on Operation Summer Nights.

Police used federal grant money to pay for the costs of the operation, including renting the lake home, the wages of outside officers assisting with the operation and the lodging of the police officers working on the operation. Sheriff's Office spokesman John Herrill said that they hope to recoup costs through restitution payments if the suspects are convicted.

The case of State v. Perez, 36 Fla. L. Weekly D2288a (Fla. 2d DCA October 19, 2011) involved an appeal by the State from the circuit court's order dismissing a grand theft charge.

Ms. Perez was charged by information with committing grand theft between May 1, 2000 and August 31, 2000. The information was filed on November 27, 2002. The issue in the case was whether this specific statute of limitations found in Florida Statute § 812.035(10) applies or whether the general statute of limitations contained in Florida Statute § 775.15 controls so as to allow the prosecution.

The general statute of limitations contained in Florida Statute § 775.15(5)(b) provides that process must be executed without unreasonable delay. It further sets forth:

In determining what is reasonable, inability to locate the defendant after diligent search or the defendant's absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

The above statute was in effect on July 1, 1997.

Florida Statute § 775.15(6) further provides:

The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state. This provision shall not extend the period of limitation otherwise applicable by more than 3 years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from the state or has not been extradited for prosecution from another state.

Florida Statute § 812.035(10) which specifically applies to the grand theft statute sets forth a five-year limitation period. That period can be extended for no more than 1 year should the defendant be continuously absent from the state.

The court noted that in the Perez case, the statute of limitations began to run on September 1, 2000. In support of this the court cited to Brown v. State, 674 So. 2d 738 at 741 (Fla. 2d DCA 1995). The court went onto note that the information was filed within the limitations period and that the capias was issued within the limitations period but was not executed until September 9, 2010, almost eight years after the state filed the information.

The state argued that it was entitled to rely upon § 775.15 and therefore, prosecution was permissible due to the defendant's continuous absence from the state.

The appellate court was then called upon to decide whether § 775.15 supersedes or adds to the specific limitation provisions for grand theft provided in § 812.035(10).

In deciding the statutory construction issue, the court recognized that a more specific statute controls over the more general statute. In particular it noted that the wording of § 812.035(10) includes "notwithstanding any other provision of law." Therefore, it held that § 775.15(5) and (6) had to yield to the specific statute of limitations contained in the theft statute, § 812.035(10). It also noted that the trial court considered the state's delay in executing the capias.

The ruling is therefore clear that in a prosecution for theft, the state is limited to a maximum limitation period of six years as provided in § 812.035(10).