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Internet and Computer Crimes/Sex Crimes FAQs

Can I be prosecuted for just for talking about having sex with a minor over the internet?

Answer:

Yes, you can. The prosecution of those looking to have sex with a minor over the internet has exploded in recent years. These cases are easy to prosecute: police officers pose as underage minors (or the minor's parents) and get people to make incriminating statements. Then, they arrest them; the prison sentences are long. And the entire crime is a complete fiction, since there was no possibility for the minors or those seeking them out to actually meet, because the 'minors' are actually police officers. But how can someone be prosecuted for attempting to commit a crime which could actually never come to pass? As a Jacksonville criminal defense attorney, I have seen it happen.

Consider the recent case of U.S. v. Howard, decided by the Fifth Circuit Court of Appeals on September 9, 2014. Jeffrey Howard, an unemployed and bedridden man in California, began corresponding on a social networking website with a woman in Texas. Howard asked if the woman knew of a fifteen year old girl he could have sex with. The woman went to the police. The police created a fictitious persona, complete with a fake e-mail address and a phony Facebook profile. The fictitious person (an undercover cop) told Howard she could get a fifteen year old girl for him to have sex with. The undercover cop and Howard went back and forth for three weeks. The cop tried to get Howard to book a flight to Texas, but Howard (who was really all talk) refused. Finally, the cop, pressing Howard, said "take it or leave it", and Howard responded "okay, I'll leave it." This message was the last time Howard communicated with the undercover cop. Three months later, Howard was arrested in California, tried and convicted in Texas for the crime of attempt to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity.

Did Howard's conduct cross the line from "preparation" to "attempt"? Howard's lawyer argued at his trial that Howard did not take a "substantial step" and that his conduct amounted to mere preparation. The trial court rejected Howard's arguments, because Howard sent a picture of his penis to the undercover cop and asked her to show it to the fictional minor. The trial court believed this to be a "substantial step." Howard was sentenced to the mandatory minimum sentence of 120 months imprisonment (10 years)!

In federal court, one must take a "substantial step' in order to be convicted of an attempt to commit a crime. The "substantial step" must be conduct that strongly corroborates the firmness of one's criminal intent. Acts which are merely preparatory are not enough. Howard argued that his actions-talking to an undercover cop for less than a month-can best be described as mere preparation. The prosecutor's argued otherwise, citing U.S. v. Lee, a Florida case (11th. Circuit, 2010) for the proposition that firm plans to travel are not required.

Prosecutions like this one ordinarily are the result of sting operations. The accused discusses a specific meeting place with an undercover cop posing as a minor (or a minor's parent). The accused shows up at the meeting place and is arrested. The courts have held that traveling to a meeting place is a substantial step toward the commission of a crime and sufficient to establish attempt. Here in Florida, the court has held that it is sufficient to prosecute someone who makes arrangements to meet a minor to engage in sexual activity, whether or not the minor actually exists. U.S. v. Yost (11th. Circuit, 2007). The appeals court in Texas affirmed Howard's conviction, which means he spends the next 10 years in prison.

Lesson Learned:

While no one has sympathy for those looking to have sex with minors, these decisions , in my opinion, come dangerously close-or cross the line- from punishing action to punishing mere bad thoughts. Howard had absolutely no intent to travel from California to Texas to have sex with a minor. He had neither the financial nor physical ability to travel. Like many in his position, he was merely passing the time - unemployed and disabled - on a home computer, In no other area of the law are bad thoughts punished with substantial prison time. To those who would troll for sex with minors over the internet-don't even think about it. In nearly every case, the person you're communicating with is a police officer.


Can I be held after I serve my sentence for a sex crime?

Answer:

Yes, you can, under Florida's harsh civil commitment laws. Those convicted of sex offenses are often detained indefinitely for crimes they haven't yet committed. After serving their sentences, they are transferred to the Florida Civil Commitment Center in Arcadia. It doesn't sound like a prison, does it? Well it is, only worse, because the inmates there never know when, if ever, they will be released. As a Jacksonville criminal defense attorney, I have represented those who have been subjected to involuntary civil commitment.

What is civil commitment? In essence, it's locking someone up indefinitely for a crime they haven't yet committed. It is reserved for those who were convicted of violent sexual offenses and judged to still be a risk. And given certain findings, a state attorney is now required to refer a person to civil commitment and a judge required to order a person into civil commitment custody. It makes Florida one of the harshest states in the country for sex offenders. Horror stories abound. David G. served nine years in prison for rape. He said the woman was his ex-girlfriend and his drug dealer, but he took a plea on his lawyers advice. When his term was finished, the State recommended that they proceed with a civil commitment hearing and David was taken to Arcadia. When he finally got his hearing, some four and a half years later, a jury determined that he wasn't a threat and released him.

David said the experience was worse than prison. "It's like a living death sentence", he said. Under the current Florida law (also referred to as the Jimmy Ryce Act), at the end of a sexual offender's criminal sentence, they are psychologically evaluated by a least two people for a "mental abnormality" or "personality disorder" that would predispose them to commit another violent sex crime (only one needs to conduct an in-person interview). If judged to be dangerous, they're taken to Arcadia, where they wait their commitment trial. These trials are not based on past crimes, but rather the probability of future ones. As such, they rely heavily on expert witnesses who, somehow, predict the future behavior of sex offenders.

The State of Florida, expecting a dramatic increase in the number of sex offenders who will be civilly committed, is considering adding a wing to the Arcadia facility or converting a prison to handle the overflow. Arcadia currently houses over 650 inmates. Interestingly, a national study by the Bureau of Justice Statistics found that just 5.3% of sex offenders were arrested for another sex crime within three years of their release, a much lower recidivism rate than for most other crimes. And sex offenders are saddled, often for life, with restrictions that make it extremely difficult for them to have stable jobs, housing, families and access to other services. Arcadia has no programs to help residents readjust back to life on the outside.

Lesson Learned:

Some inmates in Arcadia wait eight, nine, even ten years before getting inside a courtroom for a trial. And the State of Florida likes it this way. This law violates pretty much every individual constitutional right there is. No "expert' can predict whether or not someone will commit a crime again. Unfortunately, this bizarre, Kafkaesque law is here to stay.


Should I ever consent to having my computer searched by the police?

Answer:

No, you should never consent to having your computer searched, even if it's for a limited purpose. As a Jacksonville criminal lawyer, I have seen all to often criminal charges brought for what the police find on someone's computer. The 11th. Circuit Court of Appeals decision in the case of USA v. Watkins (July 28,2014) is an example of this. Mr. Watkins agreed to assist law enforcement in a murder investigation after the body of a seven year old girl, with whom Watkins was acquainted, was found in a landfill. Watkins was not a suspect in the murder of the child. The child was friends with Watkin's grandchildren and the children occasionally used the Watkins home computer. The police wanted to search for clues by visiting the websites the children had visited. Watkins agreed, but told the police that he had downloaded some child pornography on the computer. The police assured Watkins that they had no interest in the child porn; they were only interested in evidence relevant to the murder investigation. So Watkins agreed to allow the police to search his computer, but only as it related to the murder investigation.

Watkins was asked to sign a voluntary consent form authorizing a full search of his computer. When the police got to the Watkins home, they also had Watkins's wife sign an identical consent form, although she later testified at a hearing that he understanding was that the search was limited to the murder investigation and the websites the children had visited.

When the police found the child porn on the computer, they charged Mr. Watkins with the receipt of child pornography. Watkins's lawyer moved to suppress the evidence of child pornography because Watkins never consented to a search of his computer for this purpose. After a hearing, a Judge concluded that the search of the computer had exceeded the scope of Mr. Watkins consent. The Judge found that the police had given "false assurances" to Mr. Watkins about the purpose of the search and determined that Mr. Watkins consent to the search was limited to evidence relevant to the murder investigation.

If the decision ended here (as it should have), and the evidence suppressed, it would have been a fair one. After all, it was clear to everyone that Watkins only consented to a search of his computer to help solve the murder of a child. But, incredibly, the Judge concluded that Mrs. Watkins gave her consent to a full search of the computer (even though she testified otherwise). The Judge decided that Mrs. Watkins's testimony at a hearing was less credible than the detective, that her assertions were unclear and inconsistent and that she was interested in the outcome of the case "due to her love for her husband". Interestingly, the Judge does not comment on the police's motivation to charge Watkins with receiving child pornography and their interest in putting him behind bars. As such, the Judge denied Watkins's motion to suppress the evidence. Watkins went to trial, was found guilty and was sentenced to 60 months in prison.

How is it possible for a Judge to decide that one spouse did not consent to the search of the home computer, but that the other spouse did consent, especially when the so-called consenting spouse denied giving her consent on the witness stand? Clearly, the police deceived Watkins when they told him they had no interest in the child pornography on his computer. The court found as much. In fact, the police outright lied to Watkins, arresting and charging him with the receipt of child pornography. How could the police have any credibility with the Judge? And how could the Judge decide that Mrs. Watkins was less credible than either her husband or the police and rule that this search was a valid one?

Lesson Learned:

Mr. Watkins made a grave error when he decided to trust the police and give them consent to search his computer. Mrs. Watkins made the same mistake. As I have written before, never, never, never give the police consent to search of your person, your car, your home or your computer, no matter what the circumstance. This is a terrible and legally ridiculous decision. But when it comes to child pornography, the rule of law goes right out the window. While I would never condone the receipt and viewing of child pornography by anyone, this decision shows that courts will bend over backwards and use the most absurd, nonsensical and tortured logic to find a reason to keep a person locked up for viewing child pornography.



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