Posted On: March 30, 2010

No Decision yet from the Third Circuit Court of Appeals In Sexting vs. Child Pornography Case

In January, The United States Court of Appeals for the Third Circuit, in Philadelphia, heard arguments in a case of three female teenagers accused of participating in a practice, now referred to as “sexting”. Sexting involves taking nude or risqué photographs on a cellular phone and transmitting them via picture messaging or e-mail to another cellular user. The issue of sexting has become one of major concern in today’s teenage society, with MTV initiating a television campaign to warn of the dangers of sexting. Advocates against the practice argue that teens who participate in sexting put their safety at risk, as once a sexual picture is sent, the sender no longer has control over who sees the picture, including sexual predators. The opposition argues civil and constitutional rights, such as the First Amendment right to freedom of speech.

In the criminal realm, the issue of sexting at least amongst those under eighteen years of age creates an area of prosecutorial concern; specifically whether the practice of sexting amongst minors constitutes creation and distribution of child pornography. Many jurisdictions have dealt with the issue of charging minors in relation to sexting incidents. Said charges have ranged anywhere from Obscenity to Possession of Child Pornography. The issues before the Third Circuit this past January not only involved the criminal prosecution of those involved, but the actions of Prosecutors as well.

Three young females from just northwest of Scranton, Pennsylvania, were caught with photographs of themselves on their respective cellular phones; two twelve-year olds are portrayed in training bras and one sixteen-year old is portrayed in a bath towel with her breasts exposed. All three are accused of disseminating those photographs. The Wyoming County District Attorney who considered prosecuting the matter gave the girls an ultimatum; attend a course developed by the District Attorney’s office to educate young girls on the dangers of being a teenage girl in today’s society, or face criminal prosecution in the alternative. The girls were also required to write essays admitting that their actions were inappropriate and why those actions were improper. The ACLU moved for an immediate injunction on criminal prosecution of the girls and said injunction was granted by the United States District Court for the Middle District of Pennsylvania, holding that the photographs in question did not constitute child pornography and were therefore protected by the First Amendment.

At the hearing in front of the Third Circuit, prosecutors admitted that the photographs of the two twelve-year olds were not child pornography, but rather made in bad taste. Prosecutors agreed that charges could not be brought against the twelve-year olds, however maintained that the sixteen-year old’s photograph with her breasts exposed constituted a chargeable offense. The Appellate panel did not seem keen to the idea of the District Attorney’s office attempting to educate young females of the dangers of sexting, as the DA’s role is not that of a teacher. The panel also seemed skeptical about the transmission of nude photographs of one’s self, by choice, as being dissemination of child pornography. Lawyers for the girls further argued that the pictures do not even portray the pubic area, let alone genitalia, and therefore charging the girls with a second-degree felony which carries a ten year prison sentence is extremely excessive and unconscionable.

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 over the age of eighteen. 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, be used for spite, etc. Teens should understand that cellular phone technology does not come with a 100% 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.

Posted On: March 25, 2010

Philadelphia Appellate Court Upholds Conspiracy Conviction in One Hundred Kilogram Cocaine Trafficking Case

In a precedential decision, the Unites States Court of Appeals for the Third Circuit reversed a judgment of acquittal from the United States District Court for the Eastern District of Pennsylvania, resulting from a 2007 drug trafficking operation involving one hundred kilograms of cocaine. Defendant, Ruben Boria was convicted of both conspiracy and aiding and abetting the possession with intent to distribute more than five kilograms of a controlled substance, after a four-day jury trial in the District Court. Subsequent to receiving the guilty verdict, Boria filed for a judgment of acquittal and also for a new trial; arguing that the evidence was not sufficient to sustain convictions for conspiracy and aiding and abetting, and that the Court erred by allowing certain evidence which should have been found inadmissible. After hearing arguments on the Motions, the District Court granted Boria’s Motion for a directed judgment of acquittal. The District Court’s ruling was then appealed to the Third Circuit by Federal Prosecutors.

By way of background, the drug trafficking ring in question was part of a Mexican drug cartel, involved in distributing controlled substances throughout the United States. Federal officials were alerted to the movement of cocaine when one of the players involved phoned a contact in Philadelphia, who happened to be a Drug Enforcement Agency informant. Miguel Morel contacted Jose Alvarado, the informant, seeking an available garage to unload a tractor-trailer. Alvarado was unable to find an available garage for Morel to unload the truck, but instead found a lot where the truck could be stored temporarily overnight. Once the truck arrived in Philadelphia and parked in the overnight lot, Alvarado continually monitored the truck overnight; at some point, he was also able to alert law enforcement to the suspicious activity. The following morning, Alvarado “returned” to the parking lot to take the truck driver, Marcus Diaz to breakfast.

While at breakfast, Alvarado received a phone call from Morel, advising that he was sending someone to pick-up the truck and take it to a garage for unloading. Alvarado and Diaz returned to the parking lot where they were met by Ruben Boria. Diaz and Boria entered the truck and began driving to the garage, with Alvarado following. At one point along the journey, Diaz pulled the truck over into a parking lot while he awaited confirmation that the garage was ready for the trucks arrival. Upon exiting this parking lot, the truck was immediately stopped by Philadelphia Police, who had been observing the truck based upon Alverado’s previous information. A subsequent K-9 search alerted the officers to illegal contraband and officers were able to enter the trailer via a key they found on a key-ring, which was left in the ignition upon the stop. After three hours of searching the trailer, one hundred kilograms of cocaine were found hidden within boxes of rotten fruit.

Federal Court case law has established that in order to sustain a conviction for conspiracy to possess with the intent to distribute controlled substances, there must have been a shared unity of purpose, an intent to achieve a common illegal goal, and an agreement to work towards that goal, but also specific knowledge that controlled substances were involved, rather than some other contraband or illegal activity. A long line of case decisions has established that when a co-conspirator’s activities do not demonstrate sufficient knowledge that the illegal activity involved a controlled substance, a conviction for conspiracy to distribute controlled substances can not be substantiated.

On appeal, the government argued the facts of the case, which they believe showed Boria’s knowledge that he was transporting a controlled substance. The government cited Miguel Morel’s reputation as a drug trafficker; Alvarado’s testimony established that Morel would often hire others to do his leg work while he remained far away from the controlled substance, would share information with these workers relative to their duties, and that Morel was known for these practices. The government established that Boria has fourteen telephone calls to and from Manuel Baroso in the hour prior to the police stop, a known drug supplier according to Alvarado, and that Boria’s phone continued to ring after the stop. Based upon Alvarado’s testimony that the individuals whom Boria contacted were well known for their involvement in drugs, the Third Circuit found sufficient evidence to sustain convictions for conspiracy and aiding and abetting possession with the intent to distribute a controlled substance, thereby reinstating the convictions and remanding the case for further proceedings.

Drug Crimes

Possession with the intent to distribute a controlled substance is a crime which carries many harsh penalties. Depending on the quantity of controlled substance you are found to possess, you may even be charged with drug trafficking. Such charges carry even greater penalties.

Drug offenses are serious matters which involve serious penalties. If you have been charged with a drug offense, there are many defenses which may be available. Contact a Philadelphia Criminal Defense Lawyer immediately, so that your situation can be assessed and a defense to your charges can be developed.

Posted On: March 23, 2010

Supreme Court of the United States to ConsiderTwenty Year Old Political Corruption Law

The Honest Services Fraud statute, a tool used by prosecutors in political corruption cases over the past twenty years, may soon be voided or modified by the Supreme Court of the United States due to vagueness and over breadth. The Honest Services Fraud doctrine presumes that a public official owes a duty of honest service to the public who he or she represents. When that public service official breaches that duty by concealing a financial interest, and using the mail, telephone or email to do so, that politician can be prosecuted under the Honest Fraud Services statute, amongst other charges. In the past, some states have used the law to prosecute legislators who accept gifts or jobs from lobbyists who receive public funding. Others have been prosecuted under the doctrine for non-disclosure of certain financial information on financial statements, where it was later found that the official voted against legislation which would have affected the non-disclosed income. Proving a violation of the Honest Services Fraud statute is much easier than other violations, such as bribery.

The Supreme Court is expected to rule on three cases within the next few months, all of which involve the Honest Services Fraud doctrine. Lawyers for the accused have chosen to attack the law itself, citing its vagueness as grounds that the law is unconstitutional. In order for a law to be valid, the law must be written with specificity, so that those required to obey the law know exactly who the law affects and what actions are prohibited. Lawyers argue that public officials for whom the doctrine applies do not understand what actions are, and are not, covered by the law. One lawmaker has been prosecuted for merely accepting free lodging from lobbyists. Others have accepted jobs or have been accused of using their influence to help relatives and friends do the same.

Crimes such as bribery, extortion, and other corruption related violations are legislated specifically; indicating who the law applies to and what elements of the crime must be proven to convict a violator. The Honest Services Fraud doctrine is more of a catchall law, which can be used by prosecutors to more easily gain a conviction or convict a public official where the evidence against said official is not sufficient to sustain conviction for other violations. Many of the officials currently serving time or convicted in the past under the statute were also convicted of more specific crimes such as bribery. However, to the extent that politicians have been convicted solely under the Honest Services Fraud doctrine, a Supreme Court decision to void the law would potentially overturn those convictions.

Supreme Court Justice Antonin Scalia has been quoted as saying a political official could potentially be prosecuted under the Honest Services Fraud doctrine for dropping his name at a restaurant to get a table on a Saturday night. As many judicial officials share in his position, it is expected that the law is either limited by the Supreme Court as to what behaviors are considered illegal, or the law declared unconstitutional as is and Congress be instructed to rewrite new, more specific legislation.

The Law Offices of Marc Neff have over 20-years of experience successfully defending clients charged with fraud and related offenses. If you are under investigation for fraud, or have been charged with a criminal offense, contact our offices immediately. There are defenses available to you, and Law Offices of Marc Neff can assist in developing a successful defense. You may schedule a confidential consultation by calling (215) 563-9800 or by email, marc@nefflawoffices.com

Posted On: March 19, 2010

Serial Child Pornography Offender Sentenced to One Hundred Eighty Months Special Conditions upon Release

In Philadelphia, the Third Circuit Court of Appeals recently held certain special conditions of parole, issued upon a defendant who pled guilty to transmitting child pornography as part of his sentence, were unconstitutional. Arthur Heckman pled guilty to one count of transporting child pornography. Mr. Heckman had entered a chat room on America Online and transmitted a total of eighteen sexually explicit images of minors to an undercover FBI agent. The FBI was able to obtain Mr. Heckler’s information from America Online and subsequently arrested him. Mr. Heckler, a repeat offender, was sentenced to the mandatory minimum sentence of one hundred eighty months imprisonment; sentencing guidelines for a first offense would be between seventy and eighty-seven months. Heckman was already serving a one hundred eighty month sentence in Florida at the time of his sentencing, and the District Court ordered both sentences to be served consecutively. Mr. Heckman, forty-eight years old at the time he pled guilty, is therefore scheduled for release in his late seventies.

As part of Mr. Heckman’s sentence, the Court imposed lifetime supervised release to follow his prison term and issued three special conditions on his parole; lifetime mental health evaluations, a lifetime ban on internet access and a restriction on any interaction with minors, to be enforced by the United States Probation Office. Mr. Heckman appealed to the Third Circuit, arguing the special conditions as applied to his parole were unconstitutional.

The Third Circuit disagreed with Mr. Heckman in regard to the condition requiring lifetime mental health evaluations, citing the government’s responsibility to rehabilitate offenders and also to protect society from repeat offenders. The Court, however, overturned the restrictions on internet access and interaction with minors.

In holding the lifetime internet ban unconstitutional, the Court cited a line of cases also from the Third Circuit, which discuss the ban on internet privileges in cases of child pornography offenses. At first, the Third Circuit was skeptical to issue such bans as the constitutional infringements on the First Amendment could potentially outweigh the benefit to society. Slowly, on a case by case basis, the Third Circuit has begun upholding reasonable bans on internet access, most recently supporting a ten-year ban in United States v. Thielemann. The Court, however, has never upheld a lifetime ban on internet access, in part due to the necessity for internet access in today’s society; for example to search for employment. The Court further explained that Mr. Heckler did not necessarily use the internet to endanger minors; rather he used the internet as a means to transmit pictures which had already been taken. The Court cited a prior case where the offender used the internet to facilitate a sexual relationship with a minor from another state. In that case, the ban on internet privileges was merited as the offender had used the internet to endanger a minor.

Regarding the restriction on interaction with minors, the Court held that the delegation of supervisory and executive powers to the United States Office of Parole was unconstitutional. The Court therefore remanded the special condition on sentence back to the District Court for more specificity in compliance with the Constitution.

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. You may schedule a confidential consultation by calling (215) 563-9800 or by email, marc@nefflawoffices.com.

Posted On: March 16, 2010

Child Pornography Victim Seeks Restitution From Those Convicted of Possessing her Images

When Amy was a young girl, her Uncle sexually abused her by forcing her to pose for sexually explicit photographs and sharing those photographs with other pedophiles. Her photographs, which became known as “the Misty Series”, were some of the first photographs to ever surface in the internet world of child pornography and remain popular amongst child pornography viewers even today. Amy has since reached majority and with the help of a creative lawyer, is now seeking restitution from all those convicted of possessing her photographs.

The Uncle who was responsible for violating Amy as a child currently remains in prison, yet in the world of child pornography, Amy’s pictures continue to circulate. Every time someone is arrested for possession of child pornography containing one or more of her photographs, Amy receives notification from the Federal Government. Amy’s lawyer has begun filing lawsuits against those individuals based on child exploitation. He had Amy examined by a psychiatrist and also had her write a victim impact statement. He then hired an economist to examine the psychiatrist’s findings, estimate counseling, diminished wages and lawyer’s fees, and determine the total monetary damages faced by Amy due to her sexual abuse. This number was determined to be $3,367,854.00.

The idea of restitution gives the Court another means by which to punish child pornography offenders. Prison sentences for offenders have consistently been extended and conditions of parole have become more and more restrictive, to the point where equal protection under the Constitution has become an issue raised in defense of violators. By holding offenders financially liable for their actions, Courts have an alternative to increasing prison sentences, which may then be challenged as unconstitutional.

Since Amy has begun seeking restitution from those possessing her pornographic photographs, Amy has collected $170,000.00; $130,000.00 contributed by an executive from a pharmaceutical company convicted of possession of child pornography. Amy is suing under a theory of joint and several liability; seeking contribution from all those convicted of possessing her photographs until she receives the total of $3,367,854.00.

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. You may schedule a confidential consultation by calling (215) 563-9800 or by email, marc@nefflawoffices.com.