Posted On: May 20, 2009

Minnesota Legislature Interprets Federal Law to Allow States to Block Internet Gambling Sites, Raising First Amendment Concerns

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.

Posted On: May 13, 2009

U.S. Supreme Court Rules Search of a Vehicle Following an Arrest Must be Reasonably Necessary and Related to the Offense

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.

Posted On: May 11, 2009

Third Circuit Follows Olhovsky Decision with another Pro-Defense Opinion in Tomko – Ruling a Lenient Sentence Is Not Unreasonable

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.

Posted On: May 5, 2009

Third Circuit Holds Government Contracted Psychologist May Be Subpoenaed To Testify Favorably For Defendant at Sentencing

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.