Philadelphia Criminal Defense Lawyer Blog

In the recently decided case of Commonwealth of Pennsylvania v. Alexander, No. 2555 EDA 2008, 2011 WL 941191, 2011 PA Super 54 (March 18, 2011), the PA Superior Court considered whether a condition of the defendant’s probation which subjected him to random searches of his residence violated his rights under both the federal and Pennsylvania Constitutions. The defendant had entered an open guilty plea to violations of the Uniform Firearms Act, and was sentenced to 1-2 years of imprisonment, to be followed by three years of reporting probation. The judge also imposed a condition on his probation and/or parole that would subject him to random searches of his residence by agents of the Gun Violence Task Force.

On appeal, the defendant challenged the validity of the search condition, arguing that it violated his right to be free from unreasonable searches and seizures absent a warrant based upon probable cause under both the Fourth Amendment to the U.S. Constitution and Article I, § 8 of the Pennsylvania Constitution. The defendant argued the minimum level of reasonable suspicion required to search the home of a defendant on parole should similarly apply in order to search the home of a defendant on probation. The Superior Court agreed, vacating the portion of the defendant’s sentence permitting such searches of his residence while on probation.

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In the recently decided case, U.S. v. Flyer, No. 08-10580 (2-8-11), the Ninth Circuit Court of Appeals determined that deletion of an image alone is insufficient evidence to support a conviction for knowing possession of child pornography on or about a certain date under US federal law.

In an undercover operation, the FBI had downloaded various files containing child porn through a file-sharing program, which were traced back to the defendant’s IP address. A search of the defendant’s residence produced a computer, on which child pornography was found in the “unallocated space” on the defendant’s hard-drive. Files found in unallocated space are files which have been deleted, but which can be viewed or accessed with special software. Based upon the government’s finding of child pornography files in the “unallocated” space on the defendant’s hard-drive, he was charged with possession of child pornography and convicted at trial.

On appeal, the defendant argued that evidence presented at trial was insufficient to support his conviction. The Ninth Circuit agreed, reversing his conviction. The court explained that the government had presented no evidence that the defendant knew that the files existed on the unallocated space of his computer’s hard-drive, or that he had the special software required to see or access the files. The Court also noted that there was no evidence that the defendant had “accessed, enlarged, or manipulated any of the charged images”, and that “he made no admission that he had viewed the charged images on or near the time alleged in the indictment.” Thus, because the only evidence supporting the defendant’s conviction was the deletion of an image (leaving it in the “unallocated space”), the Court determined that the evidence failed to support a conviction for possession of child pornography.

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The Third Circuit Court of Appeals recently found that a search warrant in a child pornography case was sufficient, even if not based on a detailed description of the computer hard drive being searched. In US v. Miknevich, 2011 US App. LEXIS 3824 (3d Cir. March 1, 2011), the Court considered whether the affidavit providing the basis for a search warrant in a child pornography case need to include copies of the items being searched for or a detailed description of these items.

Defendant Stephen Miknevich was charged with possession of child pornography in the United States District Court for the Middle District of Pennsylvania. At trial, he moved to exclude from evidence the images of child pornography found by police on his home computer by challenging the validity of the search warrant used by the police. The District Judge denied his motion, and Miknevich pled guilty, understanding that he could still challenge the legitimacy of the warrant before the Third Circuit Court of Appeals.

When reviewing the validity of a search warrant, an appellate court (such as the Third Circuit Court of Appeals) must determine whether the judge issuing the warrant had “probable cause” to believe that the defendant was guilty of a crime. A judge issuing a warrant may find “probable cause” when, viewing the totality of the circumstances, “there is fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). If a substantial basis exists to support the judge’s finding of probable cause, the appellate court must uphold the finding even if a different judge “might have found the affidavit insufficient to support a warrant.” US v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993).

Here, Miknevich argued that the warrant was invalid because the police affidavit that the issuing judge relied on did not include either a copy of the movie that the police expected to find on his computer, or a description of the movie’s content. Still, the Third Circuit found that the warrant was adequate, because it did contain the file name for the movie, which referred to explicit sexual acts being conducted by six and seven year old children. Although the Court recognized that file names do not always accurately describe file contents, they also noted that for a warrant, a judge need not be certain that the defendant was guilty of a crime, only that there was a substantial chance that he was. Based upon this standard, the Court held that the file name was enough, and that the warrant was valid.

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The Supreme Court of Pennsylvania recently reversed a decision by the Superior Court that a police officer had reasonable suspicion to conduct a warrantless search of a woman’s handbag for safety reasons based solely on the fact that the owner of the handbag was located inside a residence where another individual had been selling drugs. The case arose from an incident where, after a drug sale outside of a house, police officers obtained consent to search the home. Inside, they saw the Appellant sitting on a sofa with her handbag next to her on the floor. The officer testified that she had searched the Appellant’s purse because she feared that it might contain a firearm, stating that “the drugs were coming out of the property. The boy had drugs on him, and drugs and guns go hand-in-hand.”

The Appellant was convicted in the Court of Common Pleas of Philadelphia County, and appealed to the Superior Court. The Superior Court affirmed the Court of Common Pleas decision and upheld the legality of the search, noting that the Appellant had a large bag, easily capable of holding a gun, and that, a few minutes prior to the search, a suspect had emerged from the house after selling drugs to a confidential informant. The majority opinion explained that “drugs and guns frequently go hand-in-hand”, and that “the officer had a right to conduct a minimally intrusive search for weapons in order to protect herself.”

Upon review by the Supreme Court of Pennsylvania, the Superior Court’s decision was reversed. The Supreme Court’s opinion held that the police cannot frisk an individual for weapons unless the officer observes suspicious behavior or has prior knowledge of the individual’s criminal propensities. A protective search cannot be justified unless the officer can articulate facts that establish an individualized, objective basis for perceiving a threat of armed violence. An individual’s location, standing alone, does not provide sufficient grounds for a search, pursuant to Terry v. Ohio, 392 U.S. 1 (1968). Courts cannot abandon the totality of the circumstances test and rely exclusively on the “preconceived” notion that certain types of criminals regularly carry weapons.

The Court explained that here, the officer conducted a protective search of the Appellant’s purse based on a generalization that firearms are commonly found in close proximity to illegal drugs; however, upon entering the house, the officer did not detect any unusual behavior or furtive movements on the Appellant’s part, nor did she observe a suspicious bulge in the Appellant’s purse. An officer must have a particularized, objective basis for a protective search; an individual’s mere proximity to others engaged in criminal activity is insufficient. Thus, the Court held that the contraband discovered in the Appellant’s handbag should have been suppressed, because the Commonwealth had failed to elicit any facts that supported an objectively reasonable belief that the Appellant was armed and dangerous.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at marc@nefflawoffices.com.

The Third Circuit Court of Appeals recently affirmed a New Jersey U.S. District Judge’s decision to impose a sentence of less than the mandatory minimum for a defendant convicted of child pornography charges. In United States v. Grober, the defendant pled guilty to six child pornography charges. Under the sentencing guildelines set forth by the Department of Justice, the judge was advised to sentence the defendant to a term between 235 to 293 months imprisonment. Calling the guidelines “draconian”, the judge instead sentenced the defendant to 60 months imprisonment, the mandatory minimum sentence.

The Department of Justice appealed the sentence, arguing that the District Court rejected the guidelines without adequately addressing the prosecution’s arguments about the rationales of Congress and the Sentencing Commission, embodied in the guidelines. However, they did not argue that the District Court lacked the authority to disagree with the guidelines on policy grounds, or that the sentence imposed was substantively unreasonable. Upon review, in a 2-1 decision the Third Circuit rejected the government’s appeal, noting widespread dissatisfaction amongst federal judges as the sentencing guidelines for child pornography crimes have grown increasingly harsh.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at marc@nefflawoffices.com.

Although a federal judge ordered peer-to-peer (“P2P”) network LimeWire to shut down last month due to copyright infringement issues, investigations continue by law enforcement officials into the use of older versions of LimeWire and other P2P networks as forums for the distribution of child pornography.

Since 2003, federal law enforcement agencies have undertaken a major initiative against the distribution of child porn over peer-to-peer networks. Unlike traditional computer networks, which use a central server to exchange files, peer-to-peer networks like LimeWire allow users to connect their computers directly to one another. Once a user installs a peer-to-peer software application on his or her computer, he or she can access it directly to search for and download files designated for distribution on any computer using the network at that time.

Investigators and agents from participating state and federal agencies continue to infiltrate P2P networks to identify those who have distributed and taken possession of child pornography. Sophisticated computer programs have been developed to identify child pornography stored in folders shared through peer-to-peer applications. These applications work by searching for and identifying the “fingerprints” of known child pornography files. Every computer file, regardless of name, has a unique “fingerprint” that distinguishes it from any other file. Known child pornography files have been recorded in a national database. The investigator’s software searches for the digital fingerprints of these known child porn images on LimeWire, and then reveals the location of the computers trading the illegal images.

Although the Fourth Amendment generally requires police to have a valid warrant to seize a computer from a person’s private home, several federal courts have recently ruled that the police do not need a warrant to search publicly accessible files from a private computer on a peer-to-peer network. The Fourth Amendment prohibits unreasonable searches and seizures. Except for several well-noted exceptions, the police must have a valid warrant prior to conducting a search of a person or their private property. If the police do not have a valid warrant, any evidence seized during the illegal search is generally inadmissible at trial. Recent decisions have held that individuals do not have reasonable expectations of privacy in content made publicly available on LimeWire; therefore, law enforcement need not have a warrant to search and download content from the peer-to-peer site.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at marc@nefflawoffices.com.

Florida hedge fund manager Arthur Nadel recently was sentenced to 14 years in prison, stemming from a $162 million Ponzi scheme. Nadel, 77, had pled guilty to 15 counts of securities fraud, mail fraud and wire fraud. According to prosecutors, Nadel had defrauded investors by falsely claming that he was a successful attorney and trader, only later to spend their money to furnish his lavish lifestyle.

Nadel will serve his sentence at the same federal prison in North Carolina that houses famed inmate and Ponzi mastermind Berni Madoff. Madoff, 72, pled guilty to fraud charges last year after cheating investors out of billions of dollars. He is currently serving a 150-year sentence. Prior to surrendering to authorities in 2009, Nadel went on a two-week, cross-country trip, during which time he communicated in a letter to a family member that he anticipated that the press would call him “mini-Madoff”.”

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at marc@nefflawoffices.com.

An FBI official recently reported to the U.S. Senate Judiciary Committee that the bureau has uncovered “massive frauds” in its continuing effort to fight financial crime. Kevin Perkins, Assistant Director of the FBI’s Criminal Investigative Division, reported that new corporate fraud cases, including newly identified Ponzi schemes, are up by 111 percent. In addition, high-yield securities frauds have grown by more than 200 percent.

Several high-profile securities fraud cases have surfaced in just the past few months alone. In June, former chairman of Taylor, Bean, and Whitaker, a large mortgage origination company, was charged with a $1.9 billion fraud that contributed to the failure of Colonial Bank, one the United State’s largest banks and the sixth-largest bank failure in the country. In July, a managing partner at WG Trading and Westridge Capital Management pleaded guilty to his participation in a $700 million scheme that defrauded charitable and university foundations as well as pension and retirement plans. In September, the owner and former chief executive officer of Capitol Investments pleaded guilty to an $880 million Ponzi Scheme involving his New Jersey Firm.

Perkins also reported that in the last three years, the number of mortgage fraud cases seen by the FBI has steadily climbed from 1,200 in 2007 to over 3,000 in 2010. Of these cases, nearly 70 percent represent losses to financial institutions and other victims exceeding $1 million. In many of these cases, according to Perkins, “the loss far exceeds $1 million.” In response to the growing number of mortgage fraud schemes, the government has undertaken “Operation Stolen Dreams”, a take-down of mortgage fraud schemes throughout the country by President Obama’s interagency Financial Fraud Task Force.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at marc@nefflawoffices.com.

Hacking of Facebook accounts has become a “major issue” for the popular social networking site. Richard Allan, Facebook’s head of European public policy, recently addressed the growing concern, promising that the site would counter the problem through the implementation of “sophisticated methods of tracking unusual user behavior.” Concern over user’s privacy arose recently after hackers gained access to the Facebook account Ronald K. Noble, secretary general of international law enforcement agency Interpol. The hackers had sought access to access to highly sensitive information on wanted criminals via Noble’s account.

Although the hacking of Noble’s account has been the most high profile incident of “Facebook fraud”, a recurrent problem for the site has been the hacking of user’s accounts to contact friends and dupe them out of relatively large sums of money.

According to Allan, the company has launched a “site integrity” projected devoted to tracking suspicious activity. The site plans to add warnings if it is accessed from unusual locations or by different methods than usual, and to require users to verify the names of their friends to ensure that only the real user has access to their account.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at marc@nefflawoffices.com.

Prosecutors recently dropped drug charges against rapper T.I. stemming from his September arrest in Los Angeles with his wife, Tiny. Police had stopped the two after their vehicle made an illegal U-turn, at which time officers reported smelling marijuana as they approached the car. After searching the car and its occupants, police discovered tablets of the illegal drug Ecstasy.

Although the Los Angeles District Attorney’s Office elected to drop charges against the rapper, his arrest and subsequent failed drug test violated the terms of his probation for his 2007 federal felony gun conviction. T.I. served nine months in federal prison after securing an usual plea bargain which required him to complete 1500 hours of community service and remain on house arrest in exchange for a lesser sentence. He was also required to complete a probation period, upon which he remained at the time of his September arrest. As a result of violating the terms of his probation, T.I. will return to federal prison for eleven months.

Unlike her husband, who avoided state court charges because of his federal probation violation and return to federal prison, Tiny could face up to one year in jail in California if found guilty on the state possession charge.

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at marc@nefflawoffices.com.

The Florida Court of Appeals recently overturned a manslaughter conviction because a juror used his iPhone to look up a definition during jury deliberations. In 2006, Jose Tapanes was convicted of manslaughter after fatally shooting his neighbor during a heated argument. Tapanes claimed to have feared for his life at the time of the argument so as to render his decision to shoot his neighbor “prudent”, a term used both in closing arguments and in the jury instructions.

After Tapanes was convicted, a juror informed defense counsel that the jury foreperson had used his smart phone during a break in deliberations to look up the definition of “prudent”. Under Florida law, the introduction of external information into jury deliberations could be grounds for a new trial if a court finds that this information may have affected the verdict. Based upon the jury foreman’s use of his iPhone, defense counsel moved for a new trial.

Upon review, the Court of Appeals granted the defendant’s motion for a new trial, based upon a finding that the juror’s use of his smart phone to look up a definition and then share that definition with other members of the jury constituted misconduct that may have affected the verdict in the case. The Court emphasized that the juror’s use of the iPhone to access a dictionary was no different than referencing a bound dictionary, a material long recognized by Florida courts to be prohibited during jury deliberations. Further, the Court noted that the fact the juror was not physically inside the jury room when he accessed the definition made no difference, since he conveyed his recollection to other jurors once deliberations resumed, and that the concept of “prudence” was one that may have been key to the jury’s deliberations in the case.

Those accused of crimes 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.

The New Jersey Superior Court recently threw out a lawsuit filed by the State against ticket resellers Orbitz Worldwide and TicketNetwork Direct. The suit arose from the sale of tickets to Bruce Springsteen shows at Giants Stadium last year, six days before Ticketmaster began selling tickets. The state alleged that the resellers had violated New Jersey’s Consumer Fraud Act by offering tickets, some of which they did not actually possess or which did not correspond to actual seats, before they were made available to the public. Both Orbitz and TicketNetwork Direct operate as an internet market-places for independent ticket sellers; neither possessed actual tickets for sale. The Superior Court held that these providers do not have liability for a ticket seller’s mistake in the description of an item being sold.

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 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.