Philadelphia Criminal Defense Lawyer Blog

The Supreme Court of the United States held last week by a 5-4 majority, that a criminal defendant has the right to cross-examine forensic analysts under the Sixth Amendment’s Confrontation Clause. The ruling in Melendez-Diaz v. Massachusetts requires Prosecutors who offer drug, blood, ballistic, or other forensic reports as evidence at trial to call the analyst who prepared the report to testify. This procedure allows the Defense to cross-examine the analyst, rather than the Court simply entering the unchallenged reports as evidence against the Defendant.

In Justice Scalia’s majority opinion, he discussed the importance of the Sixth Amendment’s Confrontation Clause, writing “Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” He goes on to state that “serious deficiencies have been found in the forensic evidence used in criminal trials.” In fact, forensic evidence such as DNA is not as full-proof as portrayed on television, but rather can and has led to many mistaken convictions.

Two recent Supreme Court decisions, Crawford v. Washington (2004) and Davis v. Washington (2006), made it more difficult for the Prosecution to enter witness statements into evidence without the witness’ live testimony; however until last weeks decision, forensic evidence had not been discussed. In his dissent, Justice Kennedy worried about how last week’s ruling will affect criminal trials throughout the country. “Until [this decision], scientific analysis could be introduced into evidence without testimony from the ‘analyst’ who produced it...This rule has been established for 90 years. It extends across at least 35 states and six federal courts of appeal.” He argued that the Court came to the wrong conclusion, undoing the rule based on two cases which do not even discuss forensic evidence (Crawford and Davis).

In Melendez-Diaz v. Massachusetts, the Defendant was convicted of trafficking cocaine. He sought appeal based on the legal question regarding his right to cross-examine the analyst who submitted the report, classifying the substance confiscated from him as cocaine. Thirty-five states and the District of Columbia urged the Supreme Court to uphold the Massachusetts Court ruling, yet the majority saw otherwise. Despite arguments that it would be an unreasonable burden to require analysts to testify every time the Prosecution wishes to introduce such evidence in a criminal trial, the Supreme Court majority felt analyst’s affidavits fall into the “core class of testimonial statements” covered by the Confrontation Clause, and that “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.”

Suppression of Evidence
In a criminal trial, the burden is on the prosecution to prove guilt beyond all reasonable doubt. The prosecution builds their case with evidence; some evidence stronger than other. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible. As evidenced in the recent Supreme Court decision, these rules are ever changing. An experienced criminal defense attorney is an expert in the field of evidence and is knowledgeable about changes in the law. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed or denied admissibility.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.

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Pennsylvania’s statute on Sexual Abuse of Children contains a provision which states: “it is illegal for an individual to knowingly possess or control any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of eighteen years engaging in a prohibited sexual act or in the simulation of such act.” In 2003, Anthony Diodoro was charged and subsequently convicted with violations of the Sexual Abuse of Children statute and Criminal Use of a Communication Facility. Police had obtained a search warrant for Diodoro’s computer, upon which they found evidence of accessing child pornography in the hard drive’s cache memory; the images were not saved to the hard drive but rather the evidence showed the images were merely accessed via the internet and viewed by the user.

Diodoro was convicted and sentenced to nine to twenty-three months incarceration, followed by five years of supervised probation. A panel of Superior Court judges reversed Diodoro’s conviction, finding that the evidence against him was insufficient to support a finding of possession of child pornography in conformance with the statute. The Commonwealth appealed and was granted an en banc rehearing by the Superior Court. In this rehearing, the Court held that Diodoro’s mere accessing and viewing of child pornography constituted the control element of the criminal statute, basing their opinion on the ordinary meaning of control as to exercise restraint or directing influence over something; specifically, his use of the computer mouse to open the images, locating the websites, and having the ability to print, save, or email the images once opened and viewed. The panel decision was therefore set aside and conviction reinstituted against Diodoro.

Diodoro appealed the en banc decision to the Supreme Court of Pennsylvania and was granted review of the following question: “Whether accessing and viewing child pornography over the internet constitutes ‘control’ of such pornography under [the statute].” Diodoro argued that in order to have control over the images, the Commonwealth must prove he had knowledge of their presence on his computer; further, he argued it is the legislature’s responsibility to enact a statute which provides fair notice that viewing child pornography constitutes an offense under the Sexual Abuse of Children statute. The Supreme Court heard the arguments and affirmed the ruling of the Superior Court. The Court agreed with the definition of control being used as to exercise restraint or direct influence. Further, the Court noted that had Diodoro saved or printed the images, he would have violated the possession element of the statute and been convicted as such. The Court reasoned that interpreting “possession or control” as not interchangeable would create a major loophole in the statute in which offenders could merely delete or not save child pornography upon intentional viewing. The purpose of the statute is to protect a compelling state interest (protecting children from sexual exploitation), and therefore must be interpreted broadly enough to punish those who intentionally access (but do not save) child pornography.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making or distributing child pornography, or the sexual abuse of a child, the Law Offices of Marc Neff can help. For a confidential consultation, please contact our offices at 215-563-9800 or via email at marc@nefflawoffices.com.

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Posted In: Internet Crime

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A recent order by the Minnesota Department of Public Safety, which would block access of residents to a list of gambling websites, has come under criticism for infringing upon First Amendment rights. The State of Minnesota published a seven page list of internet gambling web sites, which it then distributed to Internet Service Providers operating within the state and ordered the ISPs not to provide access to the listed sites. The order to blacklist the websites came on the legislature’s interpretation of a Federal law, stating the law “requires upon notice of a law enforcement agency that you do not allow your systems to be used for the transmission of gambling information.” Further, gambling is illegal in the state of Minnesota.

The Federal law referred to by the Minnesota Department of Public Safety, however, explicitly states that a “common courier” must discontinue its services for the transmission of gambling information. Both the Supreme Court of the United States and the Federal Communications Commission (“FCC”) have suggested, however, that cable and DSL providers do not fall into the category of common carriers; therefore, the Federal law cannot apply to them.

Similar legislation was enacted in Philadelphia in 2003, ordering ISPs to block access to possibly illegal websites. The law was intended to reduce production of child pornography. Nevertheless, a Federal Judge ruled the law unconstitutional on First Amendment grounds in 2004. The Judge stated there was a massive infringement on First Amendment protections on speech, which far outweighed the little evidence that the legislation was in fact successful in reducing child pornography. Part of the reasoning for ruling the legislation unconstitutional was that many internet sites share IP addresses with other sites. Blocking the IP address of a gambling or otherwise illegal website would also block access to legal sites which share the IP address. It would seem clear that under the same reasoning, Minnesota’s legislation will too be overturned; one particular site listed as an illegal gaming site shares an IP address with a corporation website.

The Constitution of the United States is often referred to as a living and breathing instrument, in that it is continually interpreted over time. Constitutional amendments are more intricate than they may seem on their face, often having been ruled (and overruled) upon by case law. Understanding the intricacies in the Bill of Rights requires the assistance of an experienced attorney, who has access to the latest changes in legislation and precedential court decisions. The Law Offices of Marc Neff will provide you with not only an understanding of the law, but how it can be applied to your case. For a confidential consultation, please call (215)563-9800, or e-mail Marc@nefflawoffices.com.

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The Supreme Court of the United States recently overruled a long established precedent, found in New York v. Belton, which allowed police to search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant’s lawful arrest. In the case of Arizona v. Gant, Gant was stopped for a minor traffic violation. It was discovered by the officer that Gant’s driver’s license had been suspended. A total of five police officers arrived on the scene and subsequently arrested Gant and his two passengers, securing each of them in individual patrol cars. The officers then searched Gant’s vehicle, finding a jacket which contained cocaine in one of the pockets.

At trial, the Arizona trial court refused to grant Gant’s motion to suppress the cocaine as evidence, following the decision in Belton which allowed the arresting officers to perform such a search. However, on appeal, the Arizona Supreme Court reversed the conviction and distinguished this case from the circumstances in Belton. In Belton, a single officer was on scene and confronted by four unsecured suspects. Here, five officers were faced by three suspects; all of whom were secured in custody. The reasoning behind the search in Belton (Belton was arrested on a drug offense) was that: a) the outnumbering of unsecured suspects to officers on the scene posed the risk that one of the suspects could stealthily remove evidence from the vehicle prior to search; and b) that evidence of the drug offense would likely be found in the vehicle. Here, Gant was arrested for driving on a suspended license. The police could not have reasonably expected to find evidence of such offense upon search of the vehicle. Further, as all suspects were in custody, no exigent, circumstances existed to perform a warrantless search.

The case was appealed to the Supreme Court of the United States who affirmed the Arizona Supreme Court decision, overturning a twenty-eight (28) year old precedent established in Belton. The Court held that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. By doing so, the Court established a greater expectation of privacy in one’s vehicle.

In 2006, the State of New Jersey departed from the holding in Belton on State Constitutional grounds, ultimately ruling similarly to the Arizona Supreme Court; see State v. Eckel, 185 N.J. 523 (N.J. 2006).

Suppression of Evidence

In a criminal trial, the burden is on the prosecution to prove a defendant’s guilt beyond a reasonable doubt. The prosecution builds their case with evidence; some evidence stronger than other. There are rules regarding evidence, both State and Federal, which govern what evidence is admissible. Often, some or all of the evidence the prosecution wishes to use was obtained illegally, either by police or third party. An experienced criminal defense attorney is an expert in the field of evidence. Upon reviewing a defendant’s case, a criminal defense attorney will determine if some of the evidence can and should be suppressed, and will take the appropriate action.

If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.

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One day following the Third Circuit’s precedential opinion in U.S. v. Olhovsky, the Court issued an en banc decision in the case of U.S. v. Tomko, again holding that a lenient, below-guidelines sentence is not unreasonable if supported by mitigating circumstances. In Tomko, the Defendant pled guilty to Federal tax evasion charges; stipulating to a tax loss of $228,557 for work performed on his own home but disguised as expenses to his company via false invoices. At sentencing the District Court looked to the sentencing guidelines which called for a prison term of twelve (12) to eighteen (18) months, as well as a fine. The trial Judge then took into consideration the mitigating factors associated with the case, such as the fact the Defendant was a first-time offender, the Defendant was involved in philanthropic activity, and that imprisonment of the Defendant would pose great risk to the employment of his company’s over three hundred (300) workers. The Judge decided to depart from the guidelines, sentencing the Defendant to three (3) years probation (the first of which to be served under House Arrest), two hundred fifty (250) hours of community service, and a fine of $250,000. Although the sentence was well below guidelines regarding incarceration, the fine was above the range provided by the guidelines ($3,000 - $30,000).

The sentence was appealed by the Government as being too lenient; specifically, the Government felt imposing a sentence of House Arrest to be served in the Defendant’s home, having been improved through the Defendant’s criminal tax evasion, was unreasonable. The Appellate panel reversed the sentence, ruling that the leniency of the sentence was procedurally unreasonable because the District Court had not addressed the necessity for general deterrence of criminal activity, allowing the Defendant to serve his sentence in his mansion; the center of the tax fraud case. The Third Circuit Court of Appeals then granted a rehearing en banc to determine if the panel decision to reverse was correct.

The Court cited to precedence in Gall v. U.S., which established the principle that “the fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” The Court determined that based on the record, the District Judge sufficiently considered the arguments that the Defendant’s offense merited prison time and that by imposing a lesser sentence, a message would be sent that wealthy individuals could “buy” their way out of trouble. Although a dissenting opinion states that the Defendant did not distinguish himself from other tax evaders, the majority decision asserts the mitigating factors considered by the District Judge merited the sentence of probation.

There are many types of white collar crime, including Tax Evasion and Fraud. Attorney Marc Neff has over 20 years experience successfully representing corporate and business executives, professionals, public officials, and others charged with federal white collar crimes. For a confidential consultation, contact our office via phone at (215) 563-9800 or via e-mail at Marc@nefflawoffices.com.

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The Third Circuit Court of Appeals recently decided the case of United States v. Olhovsky, ruling that the sentence imposed by the District Court upon the Defendant was unreasonable. Nicolau Olhovsky was sentenced to six years imprisonment after pleading guilty to charges of possessing child pornography. In 2004, an undercover law enforcement officer was investigating an Internet Relay Chat channel (“IRC”) in which users would trade pornographic images of children. Olhovsky was identified as one of the IRC’s users. In December of 2004, and shortly after Olhovsky’s eighteenth birthday, officers obtained a search warrant for Olhovsky’s home which he shared with his mother and sister. The subsequent search resulted in discovery of a hard drive containing over six hundred images of child pornography. Olhovsky admitted to owning the hard drive and participating in the online trading of child pornographic images.

Nicolau Olhovsky was born with several birth defects, including problems with his heart and a concave chest. His parents divorced when he was seven; he and his sister lived with their mother who became permanently disabled in a car accident shortly after the divorce. Olhovsky was awkward and isolated as a child; bullied and teased at school because of his physical deficiencies. He had a history of depression, suicidal tendencies, and was admitted into a psychiatric facility for treatment. As a result of his many physical and social problems, Olhovsky spent much of his adolescence alone in his room with his computer.

Following his guilty plea to child pornography charges, the Court ordered a psychological evaluation prior to sentencing. In his meetings with the court-appointed psychologist, Olhovsky discussed his adolescence, his current mental state, and explained as to how he became involved with child pornography; he had received an email which he opened, and this email sparked his curiosity. Dr. Silverman, who was contracted with Pretrial Services, wrote a letter to the trial judge expressing his opinion on Olhovsky and emphasizing he had never written a similar letter for any other Defendant. In his letter, Silverman alluded to Olhovsky’s past and that Olhovsky had the maturity level of a fourteen or fifteen year old. He explained that Olhovsky was extremely remorseful for his crimes and that he was slowly progressing towards becoming a mature adult; he is currently in a relationship with an adult female, he has been more active socially, etc. Most importantly, Dr. Silverman opined that Olhovsky’s collection of child pornography was due to his immaturity and curiosity, and that he was a low risk for becoming a pedophile or repeat offender.

Upon examination of this letter, defense counsel attempted to subpoena Dr. Silverman to testify at the sentencing of Olhovsky. The prosecution objected to the subpoena being granted, and the trial court refused to grant the subpoena, holding that Dr. Silverman would be testifying as an expert and such testimony was cumulative in expert reports available to the Court. The Court stated that Dr. Silverman was free to testify voluntarily and could submit additional reports for review; the defense alleges that Pretrial Services threatened to revoke Dr. Silverman’s vendor contract had he volunteered to testify, causing him not only to choose not to, but also to cease communication with the defense. Upon sentencing, the Court examined the mitigating evidence which was available and chose to impose a six year sentence; less than the suggested guidelines but sufficiently lengthy to satisfy the Court’s determination that a “substantial, indeed, draconian” punishment was required.

On appeal, the Third Circuit held that not only did the trial court err in not granting the subpoena for Dr. Silverman to testify as an expert, but that his testimony would actually be factual. Dr. Silverman could have testified to mitigating circumstances which were not contained in his letter to the Court. Further, the Appellate Court held the District Court failed to fully consider the expert reports submitted by the defense as mitigating evidence, imposing sentence to punish the Defendant rather than rehabilitate him. Olhovsky’s sentence was subsequently vacated and the case was remanded for resentencing.

Child Pornography
Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

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Posted In: Child Pornography , Internet Crime

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In Philadelphia last year, a Federal Appeals Court declared a rarely used law prohibiting the sale or possession of photos or videos of animals being maimed, mutilated, tortured, wounded, or killed, unconstitutional on First Amendment grounds. The Federal law which was passed over a decade ago, was enacted to combat a growing underground trade involving videos which portray dog fights or the mauling of other animals. The law was not intended to specifically target animal cruelty, as all fifty states have enacted their own legislation against such, and also included an exception for religious, scientific, or artistic valued depictions.

Last year’s ruling held Congress’s law unconstitutional, however, stating that the protections of Free Speech include depictions of illegal activity, with few exceptions; one of those exceptions being that of child pornography. Although the Court alluded to these exceptions, it refused to create a specific category of exceptions to the First Amendment’s protections.

According to the Baltimore Sun, the Appeals Court’s ruling effectively overturned the conviction of a Virginia man sentenced to three (3) years for the sale of several videos portraying pit bull fights and the mauling of other animals by the pit bulls. One video portrayed a pit bull ripping-off the jaw of a pig. The man had advertised his videos in an underground magazine which, according to the Federal Government, reports on illegal dog fights. He was arrested in 2003 in Pittsburgh, Pennsylvania, following the sale of one such video to Federal agents, and was subsequently charged and convicted under the currently unconstitutional law.

Government attorneys have appealed the Appeals Court’s ruling, citing that “Graphic depictions of torture and maiming of animals...have little or no expressive content or redeeming societal value, and Congress has compelling reasons for prohibiting them.” Courts have long held that the Constitution’s First Amendment right to free speech does not necessarily apply in situations where the content of such speech is construed as obscene (generally sexual in nature) or if such content is likely to incite violence. Even these categories of speech, however, must meet specific elements before being characterized as unprotected speech. The Appeals Court, in their decision, held that the content prohibited by the congressional legislation did not qualify as unprotected speech and therefore the legislation is unconstitutional. The Supreme Court of the United States has elected to hear the issue later this fall.

It is important to recognize that not all speech is protected by the First Amendment’s right to free speech and further, that there are many different forms of speech including video portrayal. If you have been arrested and/or charged with violating a State or Federal statute regarding unprotected speech, or feel that you soon may be, it is imperative that you contact an experienced Criminal Defense Attorney immediately. It is possible that the charges against you may infringe upon your constitutional right to the freedom of speech. For a confidential consultation, please contact the Law Offices of Marc Neff at 215-563-9800 or via email at marc@nefflawoffices.com.

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Posted In: Misdemeanor / Felony Crimes

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The New Jersey Supreme Court by a 4-3 majority extinguished the requirement of exigent circumstances for police officers to obtain a search warrant via telephone or other electronic means. These telephonic warrants will now be viewed under the same light as warrants obtained in-person, with their validity no longer being predicated on a finding of exigency for the search. The Court felt that the use of electronic or telephonic means to obtain a search warrant would increase efficiency of law enforcement while remaining just and fair to the suspect; the threshold of probable cause would still have to be met.

In coming to this conclusion in the decision of State v. Pena-Flores, the New Jersey Supreme Court also laid-out guidelines for Police officers to determine when exigent circumstances exist, in order to conduct a warrantless search. In Pena-Flores, Police officers stopped a vehicle late at night for a traffic violation. Upon approach of the vehicle, the officers detected the smell of raw marijuana. The officers ordered the passengers out of the vehicle. They were searched, but no contraband was found. The vehicle, however, had tinted windows making it difficult for the officers to see inside. The officers, based on the facts that the stop was late at night and they were the only two officers available, concluded they had sufficient probable cause and exigent circumstances to search the vehicle; the officers then found two bags of marijuana on the passenger-side floor. The vehicle’s occupants were then placed under arrest and the police continued their search of the vehicle, which produced a handgun and several other bags of marijuana.

The trial court determined that due to the circumstances of the stop, the officers had probable cause to search the vehicle, however, once the initial bags of marijuana were found, the search should have ceased. Once the occupants were placed under arrest, the court determined that exigent circumstances no longer existed and that the officers should have either obtained a telephonic search warrant or impounded the car. Therefore, the evidence obtained following the suspects’ arrests was suppressed. This ruling was affirmed upon appeal.

The Supreme Court held that the exigent circumstances in the Pena-Flores case were enough to justify a complete search of the vehicle, despite the fact that the suspects were in custody, because the officers could not see into the vehicle and therefore their safety was at issue. More importantly, the Court determined that exigent circumstances should be determined on a case-by-case basis, listing the following guidelines for law enforcement and the prosecution: Time of day, location of the stop, nature of the neighborhood, unfolding of the events which established probable cause, the ratio of officers to suspects, the existence of confederates who know of the car’s location and could remove its contents, whether the arrest was observed by passers who could tamper with the car or evidence, whether it would be safe to leave the car unguarded, and whether the delay of obtaining a search warrant would put the officers at a significant risk. The Court also authorized a warrantless police search of a vehicle for documents where the driver cannot produce the legally correct documents.

Drug Offenses

Drug offenses are a serious matter in Pennsylvania and New Jersey; certain offenses such as trafficking are considered felonies and carry mandatory minimum sentences. The Fourth Amendment of the United States’ Constitution affords individual rights pertaining to police search and seizure. Very often, an Experienced Criminal Defense Attorney will have evidence found inadmissible due to an illegal police search, and will have charges against the defendant dropped or greatly reduced.

If you have been charged with a drug offense, contact the Law Offices of Marc Neff immediately. We are glad to assist you in your defense and help you get your life back.

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The United States Supreme Court, last week, reinstated a West Virginia man’s conviction for a violation of Federal Law, which prohibits those convicted of a domestic violence offense from possessing firearms. The Federal Law in question was passed in 1996, and extended the prohibition on firearm possession from convicted felons to those also convicted of misdemeanor domestic violence. The case, United States v. Hayes, involved a West Virginia man who had been convicted of a domestic violence offense in 1994, against his then-wife. Ten years later, after the Federal Law had been passed [18 U.S.C. §922(g)(9)], police responded to a complaint of domestic violence at Hayes’ home. Upon search of the home, police found a rifle amongst Hayes’ possessions. Police were also able to determine that within the ten year time-frame, Hayes had owned at least four other firearms.

Hayes’ 1994 conviction was for misdemeanor battery, rather than a specific offense of domestic violence, even though the victim was undoubtedly his wife at the time. Based on this fact, Hayes argued to a United States District Court that the Federal Ban on possession of firearms should not apply to him. The District Court rejected Hayes’ argument and Hayes entered a conditional plea of guilt, preserving the case for appeal. Upon appeal, the United States Court of Appeals for the Fourth Circuit reversed Hayes’ conviction, citing that the Hayes’ conviction for misdemeanor battery was not specific to constitute domestic violence, despite the fact the battery was against his former wife. The Supreme Court of the United States agreed to hear the case, and, reinstated the conviction against Hayes.

The Supreme Court found the definition of misdemeanor crime of domestic violence, as applies to the Federal Statute, to include two elements: the use or attempted use of physical force or the threatened use of a deadly weapon, and it must be committed by a person with a specified domestic relationship to the victim. The Court held that the statute does not require the prior conviction to specifically apply to an offense of domestic violence, but rather that the Government can prove such a domestic relationship existed in the previous offense, in order to apply the Federal Law in the case at hand. The Court reasoned that requiring a prior offense to be charged specifically as a domestic violence offense would “frustrate Congress’ manifest purpose” in preventing the combination of firearms and the tendency of a person to commit domestic violence.

Domestic Violence is defined as any abusive relationship that results in emotional abuse, physical violence, sexual assault, stalking, assault, and/or threatened violence. Even State Court convictions can have Federal implications. If you have been charged with an offense of domestic violence, or an offense stemming from a prior conviction of such, it is important you contact an experienced and aggressive Criminal Defense Attorney immediately. Such offenses can carry extensive penalties. For a confidential consultation, contact our offices via phone at 215-563-9800, or email at Marc@nefflawoffices.com.

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As cellular telephone technology advances at an extremely rapid pace, more and more teenagers are possessing phones with the capabilities to snap still photos or record short videos. Coupled with the fact that as a society, children are becoming acquainted with sex at younger ages, this technology has led to the practice of sexting; sending nude photos or other sexually explicit photos and/or videos to a recipient via cell phone. The practice of sexting has led to numerous ethical and moral arguments, but the practice amongst teens has caught the attention of law enforcement. In many jurisdictions, these sexually explicit images and videos, sent amongst teenagers, are violations of child pornography laws.

An online survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy showed that one-in-five teenage participants have sent and/or received sexually explicit material via cell phone. Nearly two-thirds of those who admitted to sexting only did so within a boyfriend/girlfriend relationship; however teens in the other one-third admitted to sexting for the purpose of “hooking-up”. It is this culture of a casual sexual relationship which causes worry amongst advocacy groups who blame society’s attitude for the first rise in teenage pregnancy rates in the past fifteen years.

A Delaware middle-school recently dealt with an incident where cell phones were confiscated during class because they were forbidden in the classroom, only to find sexually explicit material upon inspection of the phone’s content. The school determined the images were not sent at or during school and decided to notify the students’ parents to deal with the problem. Other teens have not been as lucky. Another student in Delaware faces obscenity charges for sending nude photos of himself to classmates. In Pennsylvania, seven students were charged with sending or receiving child pornography when their phones were discovered to contain explicit images sent between the students. Convictions for these offenses not only will carry potential confinement, fines, and psychological evaluations, but may also require those convicted to be registered as sex offenders.

Many oppose prosecution in these cases for the simple reason that the participants do not have a criminal intent, but rather are merely conforming to society as they see it. There are no penalties for the same consensual actions amongst those of age. Many agree that the responsibility stems with the parents to talk to their children. Children should understand that once an image is sent, they no longer have any control over it; and with today’s technology, such material can easily end-up on the internet. Teens should understand that cellular phone technology does not come with a guarantee of privacy.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

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Posted In: Child Pornography , Internet Crime

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The Child Online Protection Act (“COPA”) was passed in 1998 in an attempt to regulate inappropriate web-based content which was too easily accessible by children. COPA was never allowed to take effect, however, as an injunction on the Act was immediately issued after its passage. The constitutionality of the Act was challenged in ACLU v. MuKasey, in which a United States District Court held COPA to be unconstitutional as a violation of the First Amendment. The ruling was appealed but upheld last summer by the Third Circuit Court of Appeals in Philadelphia.

As expected, the Circuit Court’s ruling was appealed and the Supreme Court of the United States was asked to grant certiorari; the Supreme Court was asked to review the case and decide whether to affirm the lower court’s decision or reverse the decision, finding the Act constitutional. COPA was passed in 1998; two years after the Supreme Court had voided a similar law known as the Communications Decency Act. Not surprisingly, the Supreme Court determined that the lower courts’ rulings on COPA were in line with both their previous decision and the framework for determining constitutionality. Therefore, the Supreme Court did not grant certiorari, effectively affirming the Circuit Court’s ruling, and voiding COPA.

The Supreme Court was under heavy pressure from the Bush administration to review the case, as the administration felt voiding the law would leave millions of children unprotected from pornography and other inappropriate material on the website. The Act would have required United States based websites to require credit card validation or some other means of age verification to allow access to the site. The American Civil Liberties Union, however, countered with the argument that COPA would not protect children from content via websites which do not operate in the United States. They argued that this infringed on American’s right to freedom of speech and that a better, more effective safety measure would be for parents to install filters on their home computers. The issue of COPA’s First Amendment implications was decided in 2004 by the Supreme Court in a split-decision, which blocked the law from taking effect on grounds that it did unconstitutionally affect freedom of speech; however, the case was sent back to the lower courts to determine the feasibility and effectiveness of internet filters. Based on the findings by the lower courts, most recently the Third Circuit, the Supreme Court recently held two closed-door meetings in which they elected not to review the Circuit Court’s holding.

The Supreme Court’s decision not to review the case effectively voided COPA as it was found to be unconstitutional as a violation of the First Amendment. The holding places the responsibility on the parents to protect their children from inappropriate web-based content, via internet filters or other parental means.

Cases involving child pornography and other internet crimes are very serious and often complicated. An experienced criminal defense attorney can assist you in defending against these prosecutions. Marc Neff has successfully handled many of these cases in both state and federal courts. Additionally, he conducts seminars for other attorneys on the most recent changes in the laws regarding child pornography and internet crime. For a confidential consultation, Mr. Neff can be contacted at (215) 563-9800 or via the internet at marc@nefflawoffices.com

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Posted In: Internet Crime

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Pennsylvania sentencing guidelines provide a range of years for which a convicted felon is to serve in prison. For example, sentencing guidelines would require a range of five-to-ten years for a certain crime. At some point within this range, the convicted felon becomes eligible for parole, or early release on a probationary status. Granting of parole is determined by a parole board that interviews the inmate and weighs different factors, such as good behavior, to determine whether to grant parole. The parole system in Pennsylvania has been highly successful with non-violent offenders. In 2007, 95% of non-violent parolees were not re-arrested. Unfortunately, the system has not been as successful with those convicted of violent crimes.

In September of 2008, Governor Rendell announced a parole freeze after two Philadelphia Police Officers and two other innocent victims were killed by violent-felons who had been released on parole. The parole system was examined during the freeze and it was determined that the parole boards responsible for releasing those felons involved in the aforementioned homicides followed proper procedures. Following the examination, the parole freeze was lifted; however, the examination report suggested that the system needed to better deal with the “worst of the worst” criminals in Pennsylvania’s prison population.

Rendell’s proposed plan for legislation, which was described recently in the Philadelphia Inquirer, would require Judges to impose a fixed-term sentence on repeat violent offenders, eliminating opportunity for early release. Rendell said that he hoped the fixed-term would be that of the maximum sentence under the guidelines’ range. The proposed law would apply to repeat offenders of violent crime only and would automatically trigger upon a second violent offense.

Regardless of whether the proposed legislation is passed, Rendell will require stricter supervision of certain parolees who have been repeatedly convicted of violent offenses. Currently, the Pennsylvania Board of Probation and Parole is examining the case of every repeat violent offender who has been released on parole for fewer than five years, in order to determine whether such stricter supervision is necessary.

A person who is granted parole has certain duties and obligations that must be followed as part of their sentence; most importantly the duty not to commit any crime or have any involvement in criminal activity. With the current scrutiny of Pennsylvania’s parole policy and potential legislation which would further tighten the system, it is imperative to obtain quality legal advice and representation should you be accused of a crime, or are currently serving a sentence for conviction of a crime. For a confidential consultation, please contact the Law Offices of Marc Neff by phone at (215) 563-9800 or by e-mail at marc@nefflawoffices.com.

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Posted In: Misdemeanor / Felony Crimes

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