After an audit of the cellular bills showed many officers were exceeding the allotted messaging allowance, the police department decided to conduct an investigation into whether or not the employee allowance needed to be raised. The purpose of the search was to ensure that officers were not being charged for work-related use. In conducting the investigation, the police department contacted the text-messaging carrier and sought a print-out of the officers’ monthly messaging statements, including the actual messages which were sent.
Upon investigation, it was determined that one of the officers had used his messaging device for personal and improper use. Many of the messages sent and/or received from his device were sexual in nature. Following confrontation by his superiors, the officer brought this instant action claiming the police department breached his reasonable expectation of privacy and that the investigation conducted should have required a search warrant.
The Court held that the officer did in fact have a legitimate privacy interest in his text messages, despite the device being work-related. Nevertheless, the search conducted was not intended for any disciplinary or criminal purpose, but rather was motivated by a legitimate work-related purpose; to ensure officers were not being charged personally for work-related use. The Court held the search legal under the “special needs” exception of the warrant requirement; The U.S. Supreme Court has recognized that, in certain limited circumstances, the government's need to discover latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting a search without any measure of individualized suspicion.
It is important to note that the Supreme Court’s decision applies to State employers and not necessarily private ones. In other words, the Court’s decision does not speak to the rights of a private employer to monitor e-mails, text-messaging, etc., from work issued devices. Further, the Court declined to comment on what a person’s “reasonable expectation of privacy” should be in this modern world of ever changing technology, choosing rather to deal with the issues of the case at bar and saving a broad determination for another day.
The second case arose out of a 2007 incident where an eight grade student from Schuylkill County, Pennsylvania also created a fake MySpace page for her principal, “self-proclaiming” he was a pedophile and sex addict. She created the page as retaliation for discipline she received resulting from a dress-code violation at the school, and did so from her parent’s home computer. The student allowed only twenty-two others access to the fake profile she had created. One of those other students printed out the fake profile and submitted the printed version to the middle school principal depicted on the MySpace page. The student was then suspended for ten days. Upon her appeal, another Federal three-judge panel upheld the suspension, indicating the girl could be punished for “lewd and vulgar” speech, and that the language used on the internet could have supported criminal charges. The student’s parents appealed the decision.
Both cases are now before the United States Court of Appeals for the Third Circuit, in Philadelphia, with arguments being heard last month but a decision not expected in the immediate future. The Court must examine many issues before rendering an Opinion; most importantly whether or not the students’ actions are protected by the Constitution, specifically the First Amendment’s right to freedom of speech. Case law seems to indicate that a student can only be punished if his or her speech incites a substantial disruption of school activities; not the case in respect to both students here. A 1996 Supreme Court decision also held, however, that there is no Constitutional protection for lewd, vulgar, indecent and plainly offensive speech in school.
This leads to the next issue that the Court must determine; the internet and how it eliminates boundaries and territories. Both students argue that they created the MySpace pages from their home computers and that no activity relating to these incidents occurred on school grounds. Attorneys for the school boards argued that with the creation of the internet, there are no longer boundaries between school and home. Activities relating to school, even though performed on a home computer, can instantaneously be disseminated across school grounds. Therefore, the school board argues that although the students created the websites from home, the fact that they were disseminated and/or seen by other students and school officials via the internet makes the students actions to have occurred on school grounds.
Those accused of crimes, or administratively punished by “state” officials, are subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected. If you have been charged with, or convicted of an offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.
]]>In the case cited above, the defendant was examined by the Sexual Offender Assessment Board in 2004 and was deemed to have a mental disorder which resulted in a serious deficiency in his ability to control sexually violent behavior. Specifically, the Board found that defendant would have rape fantasies, which exemplified defendant’s hidden sexual aggression.
The defendant challenged the Act on its constitutionality. Defendant argued that the Act infringed upon his liberty interest, specifically the indefinite continuation of the in-patient treatment. The Court held that there is a compelling interest of the Government to detain those deemed sexually dangerous as protection for the greater public. The Court held that so long as a person is deemed to suffer from such a mental disorder, they will remain dangerous to the public. The detainment of said individuals is a small price to pay for the safety of the public, according to the Court. The Superior Court affirmed the lower court’s ruling, thereby upholding Pa. C.S. §6403 as constitutional. It will be interesting to see whether or not the case is brought before the Pennsylvania Supreme Court on appeal.
Those convicted of crimes are still subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected during legal proceedings. If you have been charged with, or convicted of a sexual offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.
]]>The two suspects were indicted under the Ryan Haight Online Pharmacy Consumer Protection Act, passed into law in 2008 following the death of Ryan Haight, an eighteen year old that overdosed on prescription Vicodin he ordered without a valid prescription, online. The Act requires websites to obtain a valid prescription from the consumer, prior to dispensing prescription medication. Prior to the Act’s passage, many online pharmacies would only require the consumer to fill-out an online questionnaire; the website in question continued to dispense prescriptions based off of such a questionnaire. The Act now defines a valid prescription as a prescription that is issued for a legitimate medical purpose in the usual course of professional practice, issued by a practitioner who has conducted at least one in-person examination of the patient seeking the prescription.
The Act also requires all online pharmacies to register with the Drug Enforcement Agency. The website must also report to the Attorney General’s office as to what prescriptions and the amount of same the website offers and dispenses. All online pharmacies are now required to obtain licensure from the states in which they operate, and must comply with all state laws regarding the dispensing of prescriptions. Websites must clearly display the states in which they are licensed, the pharmacies contact information as registered with the DEA, the pharmacist-in-charge’s information and a certification that the pharmacy is licensed to practice.
Finally, the Act increases the penalties associated with violations of laws regarding the illegal dispensing of pharmaceuticals. Depending on the severity of the offense, the Act calls for fines up to $5 million and imprisonment of up to 30 years for violations of the Act.
If you are under investigation or have been charged with a violation involving an online pharmacy, you should contact an experienced criminal defense attorney immediately. You may contact Marc Neff to schedule a confidential consultation at (215) 563-9800 or email at marc@nefflawoffices.com.
The Recidivism Risk Reduction Incentive Act, or RRRI, is a Pennsylvania statute which allows a Court to impose conditional minimum sentences upon a defendant; the act is written to allow non-violent offenders an early release from prison so long as they comply with the necessary requirements. The amount of controlled substance in Hansley’s cases required the imposition of mandatory minimum sentences according to statute, however also allowed for sentences to be imposed under the RRRI. As such, Hansley was sentenced to the mandatory minimum sentences of one to two and three to six years respectively, but also allowed entry into the RRRI program with minimum sentence of eighteen to twenty-seven months. Therefore, Hansley would be eligible for parole after the conditional minimum sentence is served, assuming he’s complied with all necessary requirements under the program; a shorter term than the mandatory minimum sentence imposed.
The Commonwealth appealed Hansley’s sentence to the Superior Court, citing the RRRI’s conditional minimum sentences conflicted with the mandatory minimum sentences which were required by statute. The Commonwealth argued that the Trial Court did not have authority to impose sentence under the RRRI where a mandatory minimum sentence is in place. The Superior Court discussed the assumption that when a new law is passed, the legislature considers all applicable laws which are currently in place. Since there is no mention in the RRRI as to a conflict with the applicable statutes to Hansley’s case, the Court rationed that the Trial Court was at liberty to impose the sentence as such. Further, the Court reasoned that Hansley must comply with the requirements under the RRRI in order to receive early parole; otherwise he will serve the entire sentence as applicable under the mandatory minimum statute.
Drug Possession
Possession of 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 be charged with intent to deliver or drug trafficking. Such charges carry even greater penalties. For example, possessing between 2 and 10 grams of crack-cocaine with intent to traffic carries a minimum penalty of 1 year in prison for a first offense, and 3 years for subsequent offenses. Larger quantities mandate longer minimum sentences as well.
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. To schedule a confidential consultation contact Marc Neff at (215) 563-800 or email at marc@nefflawoffices.com.
]]>The Court examined the portion of the Act in question under a Constitutional analysis. It is important to note that the only part of the Act challenged by the inmates was the section regarding civil detainment; the Act also provides for a national registry of sex offenders and other societal protections, not challenged by the inmates nor considered by the Court.
The Court overturned the lower court decisions, holding Congress was well within their Constitutional rights to create such legislation. The Court considered the detainment clause under five separate analyses. First, the Court found that although the Constitution does not expressly give Congress the power to imprison violators of federal crimes and maintain the security of those not imprisoned but who may be affected, there is a broad authority to do both of those things under the necessary and proper clause of the Constitution. In other words, Congress may create legislation which is necessary and proper to protect those members of society who would be put in danger by the release of sexually dangerous prisoners.
Second, legislation is in place which allows for the detainment of mentally ill prisoners who are deemed too dangerous for release. The Court analyzed the established statute and compared it to the Adam Walsh Act, finding similarity between the two. The Court reasoned that since sexually dangerous prisoners can be deemed to have a mental illness, the previously established statute was precedent for the detainment of those deemed sexually dangerous.
Third, the Court found that Congress has the responsibility to protect the safety and welfare of society. Fourth, the Court held that the Adam Walsh Act does not violate the Tenth Amendment as an impingement on States’ powers.
Finally, the Court rationed that the Act is narrowly tailored and does not provide for general police powers. The Act applies solely to those prisoners deemed sexually dangerous and who would pose a risk to society if released. The Act is a narrowly tailored means of accomplishing the goal of protecting society, and only applies to a small percentage of people, already imprisoned by the Federal Government.
In conclusion, the Supreme Court has held that federal inmates may be detained beyond their sentences if deemed sexually dangerous and a threat to society. The Adam Walsh Act has been deemed Constitutional by the Supreme Court and as such, applies to federal inmates convicted of sexual offenses.
Those convicted of crimes and/or imprisoned are still subject to the protections of the Constitution of the United States. An experienced criminal defense attorney not only ensures a defendant’s rights are protected during legal proceedings, but also while imprisoned and beyond. If you have been charged with, or convicted of a sexual offense, you still have constitutional rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.
]]>Richard D. King, Jr. was charged with violations of Federal Child Pornography and Sexual Assault statutes when police discovered child pornography on his girlfriend’s home computer. King, who lived with his girlfriend, installed his own hard drive into his girlfriend’s computer. Police obtained an arrest warrant for King relating to his child pornography activities and executed said warrant at the couple’s home. While at the home, King’s girlfriend consented to the search and seizure of her computer. Upon search, police discovered multiple images which were subsequently used against King in his criminal proceeding. King’s attorney attempted to suppress the evidence obtained from King’s hard drive, arguing that King’s girlfriend did not have the authority to consent to the search and seizure of King’s hard drive; although she owned the computer itself. The suppression motion was denied; King was convicted and appealed to the Circuit Court.
Upon hearing King’s appeal, the Circuit Court held that the Supreme Court’s previous holding in Georgia v. Randolph did not apply to the case at bar. Here, King did not oppose entrance to the premises as the police had a sufficient warrant. The Court held that the holding in Randolph does not apply to personal belongings and effects, rather dwellings only. Further, King did not have his hard drive password protected. Since anyone using the computer was free to access the images without King’s consent via password, the Court determined his motion to suppress was properly denied and upheld King’s conviction.
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 and what is not. 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 actions to do so.
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.
]]>Upon pleading guilty to the charges, Padilla faced a deportation hearing and appealed his guilty plea to the drug charges for post-conviction relief. Padilla alleges that had he been advised deportation would be a consequence associated with his plea, he would never have pled guilty, choosing instead to go to trial. The Kentucky Supreme Court denied Padilla’s post-conviction relief, citing that deportation was a collateral consequence associated with the drug charges and that Padilla’s counsel was effective under the Sixth Amendment. Under the test set forth by Strickland v. Washington, ineffective assistance of counsel under the Sixth Amendment must fall below an objective standard of reasonableness, and the defendant must show that, but for the erroneous advice of counsel, the result would have been different. The Court further stated that neither Strickland nor the Sixth Amendment differentiate between direct and collateral consequences when determining constitutional effective assistance of counsel.
Based upon Padilla’s drug trafficking charges, a presumption of automatic deportation should have been obvious simply by reading the removal statute. Therefore, Padilla’s claim for ineffective assistance of counsel satisfied the first prong of the Strickland test. The Court mentioned that cases in which deportation would not be automatic would only require an attorney to warn a defendant of the potential for collateral consequences. Padilla’s claim was then examined under the second prong of Strickland; but for the erroneous advice, the result would have been different. The Court found that in the case of a collateral matter such as deportation, both parties would actually benefit by informed decisions as to pleas of guilt. Therefore, the Court reversed Padilla’s plea of guilty and remanded his drug trafficking case to trial, and/or informed plea negotiations.
Effective Assistance of Counsel
A defendant in a criminal proceeding is entitled to the effective assistance of counsel under the Sixth Amendment of the United States Constitution. Effective assistance of counsel is defined as diligent, competent legal representation that meets the minimum standards of due care expected of an attorney. A defendant should be informed of the potential consequences associated with the charges and/or acceptance of a plea bargain, prior to negotiations or proceeding to trial. The Law Offices of Marc Neff has been successful in representing clients charged in criminal matters for over twenty years. 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.
The goal of selecting a jury for trial is to select a panel of impartial jurors who will listen to the issues at hand as presented by all parties, understand and follow the judge’s instructions, and deliberate based upon those facts and instructions to achieve a fair verdict. With the evolution of electronic information sharing, more and more jurors have begun doing their own research to assist in deliberations. The problem is two-fold: one, jurors are supposed to be limited to the facts and instructions as presented to them at trial, not the wealth of information available on the internet which may or may not apply to the trial at hand; and two, jurors who choose to do their own research may rely upon information which is incorrect or flawed. Further, arguments have been made that juror use of the internet promoted corruption, tampering, or undue influence on other jurors.
Sheila Dixon, former Mayor of Baltimore, Maryland who resigned upon a conviction for embezzlement, recently challenged her conviction after it was determined that five of the jurors in her trial became Facebook “friends” during the course of trial. A Federal drug case recently resulted in a mistrial after eight jurors admitted to performing independent internet research on the issues at hand. Last year, in San Francisco, California, six hundred potential jurors were dismissed after admitting to performing their own research of the criminal matters before them.
The dangers of independent juror research are evident, simply by examining typical criminal proceedings. For example, oftentimes the jury is shielded from potential evidence, which has been successfully argued as tainted. The Prosecution may be barred from presenting certain arguments based on judicial ruling. By allowing a jury to perform their own research, beyond the scope of what has been presented, deliberations could easily be influenced by information which had previously been deemed inadmissible. Further, the fact that a juror feels he or she is an expert on a topic does not make that juror an expert. For years now, internet users have been self-diagnosing themselves with illnesses and impairments on WebMD; however clearly, the internet cannot take the place of a licensed professional.
In the past, jurors on high-profile cases have been barred from watching the news or communicating with outsiders, due to the potential of influencing the final verdict. A ban on internet access and wireless communication is merely the next step in the Court’s attempt to keep up with an ever changing
]]>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.
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.
]]>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.
]]>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
]]>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.
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.
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.
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.
The Third Circuit noted that the longest internet ban ever upheld by that Court was a ten year ban, following a twenty year prison sentence. The Eleventh Circuit recently upheld an unconditional lifetime ban on internet privileges, where the defendant was sentenced to six years imprisonment for traveling across state lines to have sexual relations with a minor. The judiciary system affords broad discretion when applying “special conditions” to probation and parole. This concept is rooted in the need for judges to weigh each defendant’s qualities, on a case by case basis, in order to determine how to best protect society and rehabilitate the defendant upon their release from custody. The variance in the Circuit Court opinions illustrates the broad discretion afforded to the Courts. Inevitably, the issue of internet privilege bans is one that must be brought before, and decided by the Supreme Court of the United States.
The argument for banning internet privileges is obvious; to prevent convicted child sex offenders from committing future harm upon release from prison. Those against internet bans raise the Civil Rights issues involved. As we advance further into the twenty-first century, the internet becomes more and more a vital part of our everyday lives. We use the internet to buy things, sell things, communicate, research, and even find employment. Banning one’s internet privileges not only prejudices a defendant in today’s society, but also severely impacts their future when the internet becomes even more necessary. Although the right to internet access is not provided by the Bill of Rights, proponents of the argument cite to the First Amendment’s right to freedom of speech as one way an internet ban is unconstitutional. Some proponents of banning privileges, such as the Motion Pictures Association, have proposed a “three-strike” policy when dealing with copyright infringers. Such a policy, when applied to child sex offenders, would likely invite extreme criticism. Until the issue is decided by the Supreme Court, however, the imposition of internet bans will be decided on a case by case basis, impacted by the area of the country where the crime occurred.
Crimes against Minors
Knowingly persuading, inducing, enticing, or coercing a minor to engage in illegal sexual activity is a violation of both State and Federal laws. If you are being investigated or have been arrested and charged with sexual abuse of a minor, attempting to do so, or other crimes against minors such as possession of 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.
For a confidential consultation call (215) 563-9800 or email marc@nefflawoffices.com.
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