Tampa Criminal Defense Attorney Lawyer Florida 813-222-2220

Arrest Update - Gasparilla BUI - Attorney Lawyer Video - Possession of Alcohol Under 21

2012-01-27T20:17:00.064-05:00

BUI BOAT 3054 Attorney Gasparilla Arrest
Possession of Alcohol Under 21
MISC0112

Tampa Criminal Defense BUI DUI Attorney will be providing live Arrest Reports we will not be using names, but only the charges made, the time and location of the Gasparilla Arrests (Click Here for Mobile Version) from the Gasparilla Pirate Fest. We will have video and updates throughout the day. We will be monitoring several sources including the Hillsborough County Jail on Orient Road near Tampa Florida.

Boating Under the Influence Penalties for BOAT 3054 BUI Boating Under the Influence include jail time, fines up to $500.00 for 1st offenses, up to $1,000 for 2nd offenses, and completion of drug and/or alcohol rehabilitation programs. 3rd or 4th convictions of BUI are often charged with a felony instead of a misdemeanor.

Possession of Alcohol Under 21 MISC0112 was the most frequent charge for Gasparilla 2012 Arrests. It appears there were far fewer arrests this year than last year's 359 arrests. Fox Tampa Bay reports, "Over 200 open container citations were issued and only 16 adults were arrested – 14 of those were misdemeanor charges." These numbers are consistent with our reporter's investigation and other sources we monitored.

Criminal Defense Attorney Needed?

Call 813-222-2220 .

While there were several DUI charges in the early morning, it was not until late afternoon that we saw a BUI Boating Under the Influence Arrest BOAT 3054 in Garrison Channel. In 2010 there were 5 Gasparilla Pirate Fest BUI Boating Under the Influence Arrests. The Police, Sheriff's Office, Coast Guard, and Florida Fish and Wildlife may be using a Mobile Facility this year to process arrests made on the water. Penalties for BUI - boating under the influence can include jail time, fines up to $500.00 for 1st offenses, fines up to $1,000 for 2nd offenses, and drug and alcohol rehabilitation programs. Those facing 3rd and 4th convictions of BUI are often charged with a felony instead of a misdemeanor.

Orient Road Jail Hillsborough County, Florida near Tampa

Hourly Arrest Updates

11 pm Arrest Update

No Gasparilla arrest suspects were booked into the Orient Road Jail this hour. Hopefully it has quieted for the night and no one else will get in trouble. We will be working all weekend, so if anyone has questions call 813-222-2220.

10 pm Arrest Update

BUI Seddon Channel 5:45 pm
BUI Hookers Point 6:38 pm
Obstruct Kennedy 7:22 pm

9 pm Arrest Update

Obstruct Ashley St 2:30 pm
Obstruct Platt St 2:30 pm
BUI Hillsborough River 4:29 pm
Trespass Fielding St 4:45 pm
BUI Port of Tampa 5:25 pm
DUI Bay to Bay 5:45 pm
BUI Seddon Channel 5:53 pm

8 pm Gasparilla Arrest Update

Poss Alcohol Minor Bayshore 4:00 pm
Disorderly Conduct Bayshore 4:16 pm

7 pm Gasparilla Arrest Update

BUI Garrison Channel 4:09 pm

6 pm Gasparilla Arrest Update

Theft Morrison 2:46 pm
Poss Ecstasy Bayshore 2:50 pm
Theft Morrison 3:10 pm
Disorderly Conduct Morrison 3:20 pm

5 pm Arrest Update

Trespass Bayshore 1:15 pm
Minor Poss Alcohol Bayshore 1:55 pm
Minor Poss Alcohol Howard 1:55 pm
Minor Poss Alcohol Howard 2:00 pm
False ID Howard 2:00 pm

4 pm Gasparilla Arrest Update

While the early morning was busy at Ashley Drive and Kennedy Boulevard, has been quiet.

3 pm Gasparilla Arrest Update

All quiet . Makes me wonder if the arrests are being handled at a remote booking facility.

2 pm Gasparilla Arrest Update

All quiet at the Hillsborough County Jail

1 pm Gasparilla Arrest Update

All quiet on the Bayfront

Noon Gasparilla Arrest Update

After quite a bit of early morning DUI activity on Ashley and Kennedy early this morning - seems quiet now.

11 am Arrest Update

DUI Bayshore 12:00 Midnite
Battery Platt Street 1:44 am
DUI Kennedy 157 am
DUI Howard Ave 3:35 am
DUI Ashley 4:15 am
DUI Ashley 4:33 am
DUI Platt 4:36 am
DUI Kennedy 4:41am

Latitude 27.947500° N
Longitude 82.458611° W

Possession of Alcohol Under 21

Criminal Defense Attorney Needed? Call 813-222-2220 .

Latitude	27.947500° N
Longitude	82.458611° W

Gasparilla Zero Tolerance Policy includes:

Must be 21 or older to consume alcohol

No trespassing on private property

562.111 Possession of alcoholic beverages by persons under age 21 prohibited.

(1) It is unlawful for any person under the age of 21 years, except a person employed under the provisions of s. 562.13 acting in the scope of her or his employment, to have in her or his possession alcoholic beverages, except that nothing contained in this subsection shall preclude the employment of any person 18 years of age or older in the sale, preparation, or service of alcoholic beverages in licensed premises in any establishment licensed by the Division of Alcoholic Beverages and Tobacco or the Division of Hotels and Restaurants. Notwithstanding the provisions of s. 562.45, any person under the age of 21 who is convicted of a violation of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; however, any person under the age of 21 who has been convicted of a violation of this subsection and who is thereafter convicted of a further violation of this subsection is, upon conviction of the further offense, guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3) In addition to any other penalty imposed for a violation of subsection (1), the court shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of, or suspend or revoke, the violator’s driver’s license or driving privilege, as provided in s. 322.056.

Mobile Site Updates

Florida Website Immunity From Injunction - Defamation

2011-12-28T18:04:00.002-05:00

Florida website receives Immunity From Injunction based upon user generated content where Defamation was alleged. Here is part of the opinion just issued.

Excerpts from Opinion filed December 28, 2011.

"The Florida Supreme Court has held that the CDA provides absolute immunity to interactive computer services like XXX (Name Omitted). In Doe v. America Online, Inc., 783 So. 2d 1010 (Fla. 2001), an internet service provider that had allowed third parties to publish allegedly illegal postings on the internet was deemed immune from suit. Relying on the Fourth Circuit decision in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the Florida Supreme Court held that “section 230 expressly bars ‘any actions’ and we are compelled to give the language of this preemptive law its plain meaning.” Doe, 783 So. 2d at 1018. Further, the Court adopted the reasoning of Zeran unambiguously, stating that it was accepting Zeran’s account of the scope and purpose of the CDA “as a basis for our reading of section 230.” Doe, 783 So. 2d at 1015. That account included the statement that “Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” Zeran, 129 F.3d at 330. Consequently, under Florida law, section 230 of the CDA “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Id."

Cell Phone and GPS Location Data in Criminal Prosecutions

2011-12-15T14:11:00.000-05:00

Cell Phone and GPS Location Data

Board Certified Criminal Trial Lawyer at Law Office of W.F. ''Casey'' Ebsary, Jr. notes recent developments in Cell Phone Location Data used in Criminal Prosecutions. When the government wants to track an individual’s location through his or her cell phone, it submits an application to a judge seeking an order compelling a company to provide access to location data. Cell phones generate several types of data that can be used to track their users’ past or present locations with various degrees of precision.

Not all Courts agree on tracking. "Courts are divided as to whether the government must show probable cause before it can obtain cell phone location data, as well as on related questions regarding warrantless GPS surveillance." "[W]ith respect to wiretapping Congress has balanced privacy interests with law enforcement needs by permitting the government to use that technique for only the more serious offenses, see 18 U.S.C. § 2516"

The court found the Feds must disclose certain Cell Phone Tracking Data under the Freedom of Information Act (FOIA). "We affirm that portion of the district court’s decision directing disclosure of docket information from criminal cases in which the government prosecuted individuals after judges granted applications for cell phone location data withoutdetermining probable cause, and in which those individuals were ultimately convicted or entered public guilty pleas."

We have posted a complete document on Cell Phone Location Data here as a free download.

One Court has reasoned, "In deciding whether the release of particular information constitutes an “unwarranted” invasion of privacy under Exemption 7(C), we “must balance the public interest in disclosure against the [privacy] interest Congress intended the Exemption to protect.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989); see Favish, 541 U.S. at 171; Ray, 502 U.S. at 175 (quoting Rose, 425 U.S. at 372)."

Even law enforcement agrees, "that disclosure of records revealing that an individual was involved or mentioned in a law enforcement investigation implicates a significant privacy interest." The Government has expressed concerns that defense attorney(s) may investigate usage of Cell Phone tracking Data by contacting "convicted 'defendants and/or their counsel to determine whether [the] defendants ever learned that they were the targets of warrantless cell phone tracking.'"

Other concerns include whether : "the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986), should be revised either to limit or to facilitate the practice." "The Supreme Court has recently granted certiorari to address the GPS issue. See United States v. Jones, 2011 WL 1456728 (June 27, 2011), granting cert. to Maynard, 615 F.3d 544."

Criminal Defense Attorneys argue that Cell Phone Tracking data records kept by the United States Department of Justice (DOJ) "would also provide information regarding how often prosecutions against people who have been tracked are successful, thus shedding some light on the efficacy of the technique and whether pursuing it is worthwhile in light of the privacy implications. Information from suppression hearings in these cases could provide further insight regarding the efficacy of the technique by revealing whether courts suppress its fruits, and would disclose the standard or standards the government uses to justify warrantless tracking. Information from suppression hearings would also provide facts regarding the duration of tracking and the quality of tracking data, facts that would inform the public discussion concerning the intrusiveness of this investigative tool."

A Federal Court of Appeals has just ruled: "In sum, because disclosure of the information considered in this Part would “shed[] light on [the government’s] performance of its statutory duties,” it “falls squarely within [FOIA’s] statutory purpose.” Reporters Comm., 489 U.S. at 773. And in light of the strength of the public interest in disclosure and the relative weakness of the privacy interests at stake, we conclude that production of the requested information will not constitute an “unwarranted” invasion of personal privacy under Exemption 7(C)."

The court found the Feds must disclose certain Cell Phone Tracking Data under the Freedom of Information Act (FOIA). "We affirm that portion of the district court’s decision directing disclosure of docket information from criminal cases in which the government prosecuted individuals after judges granted applications for cell phone location data withoutdetermining probable cause, and in which those individuals were ultimately convicted or entered public guilty pleas."

Source: ACLU v USDOJ Docket No. 10-5159 (DC Cir Sept 6, 2011).

Cell Phone Data Tracking in Your Case? Call Casey at 813-222-2220.

Cell Phone and GPS Location Data in Criminal Prosecutions

Criminal Defense Site Redesign and New Video

2011-12-01T13:37:00.004-05:00

Tampa Criminal Defense Attorney Lawyer

Tampa Criminal Defense Attorney Lawyer W.F. "Casey" Ebsary, Jr. wishes to thank web designers Jodi Ann Baudean and Randy Kirk for their huge efforts in the redesign of our home page.

We also have just produced a New Criminal Defense Video and it is located on the new Home Page and on Youtube here:

Randy Kirk is is an Expert on Google Places. Randy Kirk is available at 310-910-1848 and on his site here:

Thanks Gang!

Criminal Defense Attorney | New 1101 Channelside Drive Office | Tampa FL 33602

2011-11-30T20:50:00.003-05:00

1101 Channelside Dr
Tampa FL 33602

Tampa Criminal Defense Attorney has a New Office on the Fourth Floor at 1101 Channelside Dr Tampa FL 33602. W F Casey Ebsary, Jr. is a Board Certified Criminal Trial Lawyer. Serious charges deserve a serious defense. Discuss how he can help you or your family.

Call Casey at 813-222-2220.

Office: Tampa, Florida 1101 Channelside Drive, Tampa, FL 33602. Licensed in Florida, Federal Middle District of Florida, and the 11th Federal Circuit. Call Casey Toll Free 813-222-2220.

DUI Drug Test Refusal Overturned

2011-11-27T14:23:00.000-05:00

DUI Drug Test Refusal

DUI Defense Attorney Lawyer has previously written about refusal to take a drug urine test under § 322.2615(13) after blowing under .08 on a DUI Breath Test. License suspensions are overturned when there is no "competent substantial evidence" to support a DHSMV Department of Highway Safety & Motor Vehicles Hearing Officer's ruling. In this recent case, the driver blew a .000, had a medical condition that made urination difficult, tried to give a sample, and the DUI cop classified the failure to give a sample as a refusal. He issued a notice of suspension and it was challenged by a DUI Defense Attorney. The court tossed the suspension, since there was insufficient evidence that the driver willfully refused to take a drug test. Our DUI Searchable Database is here.

Case Excerpts

"Corporal Zeichman transported the Petitioner to the police station and, while recording on camera, asked the Petitioner to submit to a breath test even though he did not believe that the Petitioner was under the influence of alcohol. The Petitioner agreed to take the breath test and was “very cooperative.” The Petitioner performed the breath test which subsequently resulted in scores of .000 and .000. Corporal Zeichman then asked the Petitioner on camera recording to perform a urine test, and the Petitioner agreed to do so. The Petitioner drank numerous glasses of water, repeatedly asked for additional time and water, and never told Corporal Zeichman that he refused to take the urine test. After forty-five minutes, Corporal Zeichman determined that the Petitioner's failure to urinate was a refusal. Corporal Zeichman then allegedly read the Petitioner Implied Consent Warnings. " (Citations to Record Omitted).

"In the context of an alleged refusal to submit to a urine test, it must be determined that the driver's “refusal [was] willful to the extent that if the [driver] is able to submit, he or she is expected to take the test.” 11 Fla. Prac., DUI Handbook § 10:2 (2010-2011 ed.) (emphasis added). In Wolok v. Department of Highway Safety and Motor Vehicles, 1 Fla. L. Weekly Supp. 204 (Fla. 11th Cir. Ct. 1992), the Eleventh Judicial Circuit of Florida held that the failure to perform a urine test is not a refusal when the driver physically cannot provide a urine sample. See also Stack v. Dep't of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 322a (Fla. 11th Cir. Ct. 2006) (holding that the driver did not refuse a test because the driver was confused about whether the urine test was required).3 In Wolok, the defendant's failure to provide a urine sample was the result of the defendant having a ‘bashful kidney' and because “he was inhibited by the officer who stared at his genitals.” Wolok, 1 Fla. L. Weekly Supp. 204. The Wolok court thereby recognized that “[t]he only evidence before the hearing officer was that the petitioner could not urinate on demand.” Id." (Citations to Record Omitted).

"In this case, there is evidence that the Petitioner did not willfully refuse to provide a urine sample. Specifically, the record indicates that the Petitioner promptly performed a roadside sobriety test and a breath test when requested by Corporal Zeichman. " (Citations to Record Omitted).

"Thus, the Court finds that the Petitioner simply lacked the ability to perform the test as requested; consequently, his failure to provide a urine sample cannot constitute willful refusal. Therefore, based on the evidence in the record and the Court's interpretation of Wolok, this Court finds that the Hearing Officer's finding of willful refusal is not supported by competent substantial evidence." (Citations to Record Omitted).

DUI Drug Urine Test Refusal? Call Casey at 813-222-2220.

Pardon | Seal | Expunge

2011-11-26T19:46:00.000-05:00

Presidential Pardons are at 22 and counting under President Barack Obama as of November 2011. A Tampa Bay, Florida resident benefited from a "presidential pardon this week [and] called his earlier felony a "youthful indiscretion" that happened after he got mixed up in the wrong crowd."

Pardon vs. Seal | Expunge

According to the United States Department of Justice (USDOJ) "[w]hile a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of your conviction.

Free Florida Sealing and Expunge Web App

We have place a free Florida Sealing and Expunge Web App on SealMyFile.com. Check and See If You Are Eligible To Have Your Record Sealed Or Expunged. The contact The Law Office of Board Certified Criminal Trial Lawyer W.F. "Casey" Ebsary, Jr. at 813-222-2220.

Presidential Pardon Download Application Here.

Federal Offense Only

"Under the Constitution, only federal criminal convictions, such as those adjudicated in the United States District Courts, may be pardoned by the President. " Furthermore, "if you are seeking clemency for a state criminal conviction, you should not complete and submit [a Presidential Pardon] petition. Instead, you should contact the Governor or other appropriate authorities of the state where you reside or where the conviction occurred (such as the state board of pardons and paroles) to determine whether any relief is available to you under state law. "

Five Year Waiting Period

"Under the Department's rules governing petitions for executive clemency, 28 C.F.R. §§ 1.1 et seq., an applicant must satisfy a minimum waiting period of five years before he becomes eligible to apply for a presidential pardon of his federal conviction. "

Application Tip:

When completing the application, "you should state the specific purpose for which you are seeking pardon and, if applicable, attach any relevant documentary evidence that indicates how a pardon will help you accomplish that purpose (such as citations to applicable provisions of state constitutions, statutes, or regulations, or copies of letters from appropriate officials of administrative agencies, professional associations, licensing authorities, etc.). In addition, you should bear in mind that a presidential pardon is ordinarily a sign of forgiveness and is granted in recognition of the applicant's acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or release from confinement. "

USDOJ Has Penalty for False Statements

"The failure to fully and accurately complete the application form may be construed as a falsification of the petition, which may provide a reason for denying your petition. In addition, the knowing and willful falsification of a document submitted to the government may subject you to criminal punishment, including up to five years’ imprisonment and a $250,000 fine. See 18 U.S.C. §§ 1001 and 3571."

Source: http://www.tampabay.com/news/business/presidential-pardon-brings-relief-stirs-regret-wesley-chapel-man-tells/1203163

http://www.justice.gov/pardon/pardon_instructions.htm

Pardon? Seal? Expunge? Call 813-222-2220

Doctor Shopping - Florida Medical Records Thrown Out

2011-11-18T11:54:00.001-05:00

Drug Charge and Doctor-Shopping Defense Attorney Lawyer notes a new case where although the court allowed evidence from warrantless seizure of pharmacy records, it granted a Motion to Suppress Evidence from medical records and discussions with doctors that were also obtained without a warrant. We have previously covered this law here:

Florida Statute: 893.13.7A8 is a Third Degree Felony.

Statute Excerpt: 893.13 Prohibited acts; penalties.

(7)(a) It is unlawful for any person:

8. To withhold information from a practitioner from whom the person seeks to obtain a controlled substance or a prescription for a controlled substance that the person making the request has received a controlled substance or a prescription for a controlled substance of like therapeutic use from another practitioner within the previous 30 days.

Here are the Doctor Shopping Case Facts:

The officer had reason to believe that Defendant was committing the crime of withholding information from a physician and, as such, trafficking would ensue because the prescriptions received would have been fraudulent because of the withholding information. The officer goes to various pharmacies, pulls patient’s profiles. From those patients’ profiles, he finds out who the prescribing doctors are. He then goes to the prescribing doctors, in this case, [Dr. X and Dr. Y], and speaks with the doctors without any subpoena or search warrant being issued. The conversations include whether or not Defendant had disclosed previous prescriptions to the

doctor. The officer also pulled and reviewed various patient documents.

Doctor Shopping Case Excerpts:

"Medical records and physician’s statements are protected by the statutory physician-patient privilege, and therefore, the State was required to get either a subpoena with court approval or prior notice to and authorization from Defendant. See §§ 456.057(6) & (7)(a), Fla. Stat. (2008)."

"The fact that the police had already secured doctors’ names from prescriptions at pharmacies does not waive the requirements of law. There is a danger of medical professionals willing to surrender private medical records and engage in discussions regarding private and privileged communications concerning their treatment of individuals in submission to apparent police authority."

"The language in Section 456.057 is intentionally broad in protecting information from being disclosed by a health care practitioner and in assuring that the condition of a patient may not be discussed. The protection extends to all patient records. The State is not precluded from obtaining the information it seeks. Its agents must only follow the law and either seek a patient’s written authorization or the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or a search warrant."

"The object of the physician-patient privilege is to encourage patients to be entirely forthcoming and candid in their statements to their treating physicians. These conversations and the records with regard thereto protect our most fundamental right, the pursuit of life itself."

Click Here for the Free complete Opinion Download.

Source: 4th DCA No. 4D10-777 November 16, 2011

If you or someone you care about have been charged with Doctor Shopping you can call a Florida Criminal Defense Attorney at 813-222-2220 and tell me your story.

Tampa Doctor Shopping Florida Attorney Lawyer

Criminal Record Expunge Sealing Video | Attorney Lawyer in Florida

2011-11-17T15:08:00.000-05:00

Seal Expunge Florida Record

Seal Expunge Video - Arrest in Florida? Your Criminal Record Does Not Have To Follow You Forever. 1 minute video on help available to Remove an arrest record through a criminal record expungement or record sealing in Florida. Call 813-222-2220.

Learn More here:
http://expungelaw.com/

My Office is Here:
http://www.centrallaw.com/W-F-Casey-Ebsary_Jr-Attorney.kml

Expunge Sealing Video | Attorney Lawyer in Florida

Criminal Defense Video Channel | Florida | 813-222-2220

2011-11-16T12:38:00.000-05:00

Criminal Defense Videos on DailymotionCriminal Defense Video Channel | Tampa | Florida | 813-222-2220 | 33602

Qualifications of Tampa Attorney Casey Ebsary

2011-11-15T00:52:00.000-05:00

Florida Bar Board Certified

Avvo | Highest Rating | 10 Out of 10

Lawyers.com | AV Highest Rating

Martindale Hubbell | AV Highest Rating

Florida Cyberstalking - Attorney's Legal Issues for Lawyers

2011-09-15T16:48:00.000-05:00

To prove the crime of Cyber Stalking, § 784.048(2), Fla. Stat. the State must prove beyond a reasonable doubt: The Defendant willfully, maliciously, and repeatedly cyberstalked the alleged victim.

Under Florida Cyberstalking law, "Harass" means engage in a course of conduct directed at a specific person that causes substantial emotional distress and serves no legitimate purpose.

Under Florida Cyberstalking law, "Cyberstalk" means engage in a course of conduct to communicate, by or through the use of electronic mail or electronic communication, causing substantial emotional distress and serving no legitimate purpose.

Under Florida Cyberstalking law, "Course of conduct" means a pattern of conduct, a series of acts over a period of time, evincing a continuity of purpose. Constitutionally protected speech is not included within the meaning of "course of conduct."

Under Florida Cyberstalking law,, "Credible threat" means a threat made with intent to cause the target of the threat to reasonably fear for safety. The threat must be against the life of, or a threat to cause bodily injury.

Under Florida Cyberstalking law, "Cyberstalk" means to engage in a course of conduct to communicate, words, images, or language by or through the use of electronic mail or electronic communication, causing substantial emotional distress and serving no legitimate purpose.

Under Florida Cyberstalking law the penalties are: Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.

Under Florida Cyberstalking law the crimes are: Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person's child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree.

Under Florida Cyberstalking law the crimes can be: Any person who, after an injunction for protection against repeat violence, sexual violence, or dating violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person's property, knowingly, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of aggravated stalking, a felony of the third degree.

Under Florida Cyberstalking law the crime can be: Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a minor under 16 years of age commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Under Florida Cyberstalking law the government can: Arrest, without a warrant, any person he or she has probable cause to believe has violated the provisions of this section.

Under Florida Cyberstalking law the penalties can be enhanced for: Any person who, after having been sentenced for a violation of s. 794.011, s. 800.04, or s. 847.0135(5) and prohibited from contacting the victim of the offense under s. 921.244, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks the victim commits the offense of aggravated stalking, a felony of the third degree.

Under Florida Cyberstalking law the punishment imposed under this section shall run consecutive to any former sentence imposed for a conviction for any offense under s. 794.011, s. 800.04, or s. 847.0135(5).

Cyberstalking - Attorney Legal Issues for Lawyers

Board Certified Criminal Trial Lawyer W.F. "Casey" Ebsary Jr. has experience in litigating cyberstalking issues. Call him Toll Free at 1-877-793-9290.

Florida Federal Court Database Search

2011-09-15T16:04:00.000-05:00

Search Our Huge Federal Court Database for Free!

We have hundreds of pages of information on Technology, Cybercrime, Federal Fraud claims and recent developments in Federal Courts and News.

Tampa Federal Defense Attorney Toll Free 1-877-793-9290

W.F. ''Casey'' Ebsary Jr. 813-222-2220 Attorney Lawyer 27.949840,-82.445210

2011-09-14T19:26:00.000-05:00

27.949840,-82.445210

Michael Jackson Doctor Live Updates Trial

2011-09-08T18:21:00.003-05:00

Watch The Michael Jackson Doctor Live Trial Feed:

http://centrallaw.blogspot.com/2011/09/michael-jackson-dr-murray-trial-live.html

http://centrallaw.blogspot.com/2011/09/michael-jackson-dr-murray-trial-live.html

Occupy Tampa Attorney 813-222-2220

2011-09-06T08:12:00.000-05:00

Occupy Tampa Defense Attorney 813-222-2220

News Update

Live Feed Occupy Tampa

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Occupy Tampa Lykes Gaslight Park, Tampa, Florida 33602

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Google Earth Coordinates for Lykes Gaslight Park Tampa, Florida

+27° 56' 53.99", -82° 27' 31.53"

27.948304,-82.458641

Occupy Tampa Defense Lawyer 813-222-2220

Michael Jackson Dr Murray Trial Live Courtroom Stream Feed

2011-09-03T14:13:00.000-05:00

Dr-Murray Trial Live Courtroom Stream Feed

The verdict is read: “We find the defendant Conrad Murray guilty.” 4:16 p.m. ET —

Live Courtroom Stream Feed When Court in Session

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Search Warrant Gibson Guitars

2011-09-02T18:23:00.007-05:00

Gibson Guitar Search Warrant

Gibson Search Warrant? Feds with nothing better to do spent a lot of time and money drafting this Affidavit for Search Warrant. Somehow, I don't feel any safer.

Jump to End of Article to see Previous Federal Guitar-related Prosecutions.

Gibson Search Warrant Excerpts:

"The Lacey Act, 16 U.S.C. § 3372(a)(2)(B)(iii), makes it unlawful for any person to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant taken, possessed, transported or sold, in violation of any limitation under any law or regulation of any State, or under any foreign law, governing the export or transshipment of plants. Section 3371 defines the term plant and plants to mean any wild member of the plant kingdom, including roots, seeds, parts, or products thereof, and including trees from either natural or planted forest stands.

Gibson Guitar Affidavit for Search Warrant Download Here

8. Title 18, United States Code, Section 545, makes it unlawful for anyone to knowingly import or bring into the United States any merchandise contrary to law, or to receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law.

9. Countries generally establish laws and regulations related to the harvest (logging) and export of wood, timber or plants (forest products) in order to manage natural resources and regulate the commercialization of their nation's natural resources.

10. The international community uses an "International Tariff Code" system or ITC, also known as the "Harmonized Schedule" or HS, to simplify international trade in commodities including plants and plant products. Most relevant to this case is HS Code 4407, "Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded, or end jointed, or a thickness exceeding 6mm." India prohibits the export of products classified under HS Code 4407 for all plant species harvested in India, without exception."

"14. Guitar bodies utilize veneers of various wood species. Veneers are typically large pieces of uniformly cut thin sheets of wood, defined by the harmonized tariff codes under the HS series 4408. Veneers are defined as being less than 6mm thick"

Gibson Search
Warrant
Affidavit

"The plant product imported was "Ebony fingerboards for guitars: Diospyros ebenum, harvested in India". The final consignee was declared as GIBSON GUITAR, 641 Massman Dr, TN, with Herb Jenkins listed as the point of contact."

"34. According to Matthews, since January 2010, GIBSON CUSTOM has used only Indian rosewood. Eugene Nix initially receives and inspects all the GIBSON CUSTOM rosewood and ebony upon import. Nix then kiln dries the wood andlor conditions the rosewood and ebony to prepare it for the manufacturing process. The rosewood and ebony is then shipped to GIBSON CUSTOM from the GIBSON ELECTRIC facilities when it is ready. Gibson purchasing managers are responsible for the order placement and purchase of specific species of sawn wood from selected venders. The following GIBSON GUITAR CORPORATION employees are responsible for the sourcing and procurement of rosewood and ebony for manufacturing at the different GIBSON GUITAR CORPORATION Divisions . . . ."

"31. SA Seiler conducted an interview with GIBSON GUITAR CORPORATION employee, Eugene Nix, on November 17, 2009. Nix is the wood products engineer for GIBSON GUITAR CORPORATION and is responsible for sourcing types and species of wood for manufacturing use by GIBSON GUITAR CORPORATION. In addition, Nix is responsible for inspection of the imported wood to evaluate its condition, properties, and quality. Nix also accomplished all kiln drying for imported wood received at the GIBSON ELECTRIC manufacturing facility in Nashville, Tennessee, including rosewood and ebony. Nix shipped dried wood to other Gibson divisions when the wood was ready for further manufacturing. The kiln used for drying wood is located in the rough mill, an adjacent building to 641 Massman Drive. The rough mill is marked as building 653 on Massman Drive. Nix stated that Gibson uses only Indian ebony in Gibson products (containing ebony). Nix further stated the following: Rosewood used by Gibson is Indian rosewood, although Gibson had used Madagascar rosewood and ebony in the past. According to Nix, all ebony and rosewood was stored at Red Arrow Delivery Service upon import and delivery to Nashville until GIBSON GUITAR CORPORATION was ready to have it picked up. Gibson's purchasing managers are responsible for actually placing orders for rosewood and ebony from suppliers and Herb Jenkins was the senior purchasing manager at GIBSON ELECTRIC. Nix confirmed he kept electronic files and email correspondence concerning the sourcing, receipt, and use of rosewood and ebony by GIBSON GUITAR CORPORATION on his computer. "

Computers Seized

"38. Your affiant is aware that computers are used to engage in business transactions that involve the trade of wildlife and plant species. A computer may have been used to store, generate, and print documents used in furtherance of the shipments of lndian ebony and lndian rosewood, which are in violation of the laws enumerated hereinabove. For example, THEODOR NAGEL GMBH would direct their United States sales representative, Hunter Trading Corporation, to send email notification to Red Arrow Delivery Service, to authorize the release of sawn rosewood and ebony to GIBSON GUITAR CORPOPRATION upon receipt of invoice payment. In another example, LUTHIER MERCANTILE INTERNATIONAL sent an email notification to Red Arrow Delivery Service to expect arrival of a 24 pallet shipment of lndian rosewood and ebony for GIBSON GUITAR CORPORATION."

Previous Federal Guitar Cases

Guitar Hero Bandit Sentenced. A man who committed an ... www.justice.gov/usao/cac/pressroom/pr2009/029.html

Second Texas man sentenced to 16 months in prison for ...... Chinese nationals Fu Yiner and Wang Hong, who smuggled items made from sea turtle shell parts, including guitar picks violin bows, were ... www.justice.gov/usao/co/press_releases/archive/2008/June08/6_20_08.html

Second Chinese National Pleads Guilty to ...... As set forth in the indictment and acknowledged in today's plea agreement, Fu knowingly sent four shipments of raw shell and guitar picks made ... www.justice.gov/opa/pr/2008/January/08_enrd_018.html

Foreign Corrupt Practices Act | Attorney | Video

2011-08-07T17:28:00.001-05:00

Foreign Corrupt Practices Act - The DOJ and FBI enforce this law. Special FBI offices as well as teams of Department of Justice Prosecutors are now working full time, to identify criminal violations and then prosecute both people and companies. 15 U.S. Code Section 78, FCPA, Foreign Corrupt Practices Act.

Call Casey here: 813-222-2220

Casey's Qualifications are here:

http://www.centrallaw.com/CentralLawQualifications.html

Casey's Office is here:

http://www.centrallaw.com/W-F-Casey-Ebsary_Jr-Attorney.kml

Foreign Corrupt Practices Act Attorney Lawyer

Foreign Corrupt Practices Act | Guest Author Todd Foster

2011-07-26T19:16:00.002-05:00

Foreign Corrupt Practices Act (FCPA)

Washington, DC - For 10 weeks, from May 13 through July 7, 2011, I was in trial in U.S. District Court in Washington, DC, defending my client against an Indictment charging criminal violations of the FCPA. For those of you unfamiliar with the Foreign Corrupt Practices Act (FCPA), if may be time to get acquainted.

The FCPA, found at Title 15 U.S. Code Section 78dd, prohibits “bribes” to any individual working in the executive, legislative, or judicial branch of a foreign government in order to obtain or retain business. For years, business was done in certain foreign countries under a “pay to play” scenario- someone needed to get paid in order to get the deal done. Most often, when these arrangements were detected, the Department of Justice imposed civil fines and penalties and permitted the American company and its employees to keep doing business. That trend seems to have ended.

The DOJ and FBI have recently ramped up criminal enforcement of this law. Entire FBI squads as well as teams of DOJ lawyers are now assigned, full time, to identifying criminal violations and prosecuting alleged violators, individuals and companies. In addition to our very recent case in DC, on May 10, 2011, the government obtained convictions of Lindsey Manufacturing and two of its executives on charges of Conspiracy to violate the FCPA, arising out of an scheme to bribe Mexicans officials. Another criminal FCPA trial against employees of a California company, alleging bribes to a Chinese officials, will begin soon in Los Angeles. Do not think that these cases are limited to Fortune 500 companies and their employees- my client owned a mid-sized police equipment supply company in St. Petersburg . I must admit that I did not realize the full scope of the government’s efforts in this area until becoming involved in this case.

What happened in my case? After 9 weeks of trial and 6 days of deliberations, a mistrial was declared when the jury was unable to reach a verdict. They were hung 9-2 with one undecided for acquittal on the conspiracy, but closer on the substantive counts. We had raised many defenses available under the FCPA, including lack of business nexus between the payment and the contract, and absence of mens rea - the statute requires the government to prove both willfulness and corrupt intent. We also attacked, successfully, I believe, the method and integrity of the FBI’s investigation.

The bottom line here is that all clients and companies doing business with foreign governments must be made aware of this law. Although “bribes” are illegal, there are permissible ways to compensate foreign agents and foreign officials under limited circumstances. It is important to recognize the difference. Look for a lot more of these cases in the future.

Special Thanks to Guest Author Todd Foster.

TampaLawFirm.com

The Wall Street Journal | Top Attorneys In Florida

2011-07-26T18:30:00.001-05:00

Thank You. I Just received this award and as an Attorney / Lawyer and advocate in the criminal justice system, I am flattered to be honored in such a prestigious publication as The Wall Street Journal. Thank You to my peers and fellow attorneys that have recognized my Professional achievements in the nearly 20 years I have practiced trial law.

Casey Ebsary

W.F. "Casey" Ebsary, Jr.
Attorney / Lawyer

Board Certified Criminal Trial Lawyer

Tampa, Florida

July 26, 2011

813-222-2220

Toll Free 1-877-793-9290

Video | Arrest Warrant Tampa Police | Record Roundup

2011-07-26T15:26:00.002-05:00

Tampa Arrest Warrant,
Hillsborough County

Defense Attorney notes a record-breaking roundup of persons with outstanding arrest warrants.

Code Name is Operation Summer Heat .

Warrant for Arrest?

Call Me at 813-222-2220

"At dawn Tuesday, Tampa police launched what they say is the biggest warrant roundup in the department's history. With nearly 6,000 outstanding warrants on their list, their first action was to go after 459 violent felons, including eight wanted for murder."

Source: http://www.tampabay.com/news/publicsafety/crime/tampa-police-seek-hundreds-in-their-biggest-warrant-roundup/1182468

Arrest Warrant Update 10:05 am

View Larger Map of Arrest Warrant Attorney Lawyer

Update from Tampa Police 11:57 pm EST

Operation Summer Heat

72 Warrants Cleared

33 of the warrants were cleared by arrest and 5 of those arrests were by the US Marshals Service in Georgia, Ohio, Virginia, Texas and Jacksonville.

The arrests include: Attempted Murder (2) Robbery cases, (3) Felony Battery cases, Armed Robbery VOP, False Imprisonment, Deriving Proceeds from Prostitution, Compelling Individual to Become a Prostitute, Trafficking Oxycodone and multiple Felony Drug Charges.

19 suspects were deceased

20 suspects were located in prison and will be charged with TPD warrant when released.

Tampa Arrest Warrant Attorney

Tampa Criminal Defense Attorney | 1-877-793-9290

2011-07-17T11:14:00.000-05:00

Tampa Criminal Defense Attorney, W.F. ''Casey'' Ebsary, Jr. , knows that hundreds of people are arrested, questioned, and indicted in both Florida State and Federal Courts every day. That's where a Florida Bar Board Certified Criminal Defense Expert, comes in. An experienced former prosecutor of both Felony and Misdemeanor charges explains where to go for help in this 30 second video.

Stop Worrying. Get Some help Today. Call Toll Free 1-877-793-9290.

Tampa Criminal Defense Attorney | Tampa Criminal Defense Lawyer | Florida

Accidental Smuggler | Junk in the Trunk

2011-07-17T10:43:00.002-05:00

Nerd Smugglers Key Codes

Federal Criminal Defense Source has supplied us with an Affidavit from Federal Law Enforcement that outlines how drug smugglers would obtain electronic key codes using the Vehicle Identification Numbers. They would then use the keys to open the trunk to stuff drugs in the trunk outside of the United States, and retrieve them from the vehicle after it had returned to the United States.

Drugs in the Trunk? How Did That Get in There?

"The FBI has uncovered an elaborate drug smuggling scheme along the U.S., Mexican border. It involves G.P.S. devices, duplicate keys, duffel bags stuffed with drugs and regular commuters used as mules" according to a television news report, see video below.

View Larger Map

A Doctor and several other unsuspecting people were arrested at the border after cops found some vehicles to have the drugs in the trunk. All the drivers claimed to not know there was 200 pounds of weed in the trunk. Charges are pending against the smugglers. Excerpts from the Affidavit are below. Smugglers call these unsuspecting folks “blind mules.”

Accidental Smuggler | FBI Arrests Marijuana Blind Mules

The affidavit details the use of blind mules to run drugs from Juarez to El Paso. It's public record in a case out of El Paso, Texas and was filed July 1, 2011.

Electronic Key Codes and Smuggling Excerpts From FBI DEA Agent Affidavit:

Based on the information provided by [Confidential Source] CS-1, the locksmith [they] were using was specifically identified. Throughout the remainder of this Affidavit, this locksmith is referred to as LOCKSMITH A.

13. On 06/17/2011, we interviewed an El Paso, Texas-based licensed locksmith, {not LOCKSMITH A). This licensed locksmith informed us that there were several "key code source" companies that have the capability to provide vehicle key cut codes to licensed locksmiths based on the provision of the VIN by the licensed locksmith, This licensed locksmith further informed us that, as a result of differing standards and policies amongst vehicle manufacturers, "key code source" companies have varied abilities to provide key cut codes depending on the vehicle make and model. For example, this locksmith stated that most "key code source" companies had very limited access to key cut codes for most XXXX key cut codes, but had widely available access to XXXX key cut codes.

14. Texas Department of Public Safety records indicate that LOCKSMITH A is a licensed Texas locksmith with a license expiring on 12/31/2011. Based on the information described in this paragraph and in paragraph 13 above, I believe that LOCKSMITH A has access to one or more "key code source" companies and therefore has the ability to obtain vehicle key cut codes for vehicles, especially Ford vehicles, solely by providing a VIN to one or more of these "key code source" companies.

I have reviewed the information from this database with respect to a single user account (hereafter referred to as USER ACCOUNT A) from a XXXX Dealership located in Dallas, Texas. This information indicates that the following vehicle key codes were pulled by USER ACCOUNT A:

27. Per XXXX Motor Company, USER ACCOUNT A has pulled/accessed 5,321 vehicle key codes in the last 18 months, approximately 10 key codes per day. Also based on my review of this information, USER ACCOUNT A has pulled vehicle key codes for XXXX vehicles which are registered all over the United States, not just in Dallas, Texas. Based on the high volume of key codes pulled, as well as the geographic dispersion of the registered locations of the associated vehicles, I believe that USER ACCOUNT A is being utilized to provide vehicle key codes to one or more "key code source" companies as described in paragraph 13 above,

28. In order to corroborate CS-l's information with respect to LOCKSMITH A, and to confirm the link between LOCKSMITH A and USER ACCOUNT A, we tasked an Individual to go to LOCKSMITH A and request that LOCKSMITH A make a copy of a XXXX vehicle key, solely based on the provision of the VIN for that . . . . vehicle.

LOCKSMITH A employee informed the Individual that the key would only work to get in to the car, but would not start it.

30. On 06/27/2011, we received confirmation from [the manufacturer's] Global Investigations Department that on 06/24/2011, at approximately 12:22 PM (10:22 PM Mountain Time), USER ACCOUNT A pulled/accessed the TEST VIN for the 2006 [vehicle]. The TEST VIN was therefore pulled/accessed by USER ACCOUNT A during the relevant timeframe that the Individual provided the TEST VIN to the employee at LOCKSMITH A.

[B]y utilizing keys made by LOCKSMITH A and by victimizing individuals whom they have caused to unwittingly smuggle drugs, have violated Title 21, United States Code, Sections 841 and 846, Possession with Intent to Distribute a controlled substance, namely 100 kilograms or more of marijuana and Conspiracy to possess with the intent to Distribute controlled substance, namely 100 kilograms or more of marijuana.

Did Someone Hide Drugs in Your Car? Call me Toll Free 1-877-793-9290 .

Immigration and Criminal Defense Consequences

2011-07-17T00:19:00.000-05:00

Immigration and Criminal Defense

Here is an outline titled "Crimigration: The Marriage of Immigration and Criminal Law." Friend of the site and author, Terry Christian is a former Immigration Judge and is also Board Certified in Criminal Trial Law. Complete text for Immigation Consequences of Criminal Convictions and Conduct is here.

Questions about the Immigration Consequences of Criminal Conduct? Call Me Toll Free 1-877-793-9290.

The topics include:

Definition of a Criminal Conviction

Criminal Conduct Incurring Immigration Consequences

A. Crimes Involving Moral Turpitude
B. Crimes of Violence
C. Drugs and Trafficking Crimes
D. Aggravated Felonies
E. Other Crimes and Criminal Conduct Proscribed in the INA

Consequences of Criminal Convictions and Criminal Behavior

A. Inadmissibility
B. Deportability

Motion to Vacate See Padilla v. Kentucky, Case No. 08-651, S.Ct., Argued October 13, 2009-Decided March 31, 2010.)

Order of Vacatur

Complete Document is a Free Download Here.

Special Thanks to guest contributor Terry Christian.

Criminal Defense | Phone Hacking

2011-07-16T20:49:00.003-05:00

Defense Attorney, Lawyer Casey Ebsary was also cited by this publication that was discussing the implications of Phone Hacking and privacy.

Phone Hacking Charges? I Can Help 1-877-793-9290 .

http://www.wtsp.com/news/topstories/article/201732/250/How-safe-is-your-voice-mail

Casey Anthony Release Video | iPhone | iFrame

2011-07-16T11:26:00.029-05:00

Orange County FL Jail Map

iFrame Video of Casey Anthony Release Will Be Available Soon.

Orange County Jail Map of 3722 Vision Blvd, Orlando, FL 32839

iFrame Video Jail Release

Flash Video

Defense Attorney Lawyer 33778

2011-07-13T18:17:00.000-05:00

Criminal Defense Attorney needed in Pinellas County, Florida 33778? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with cases in Pinellas County 33778. Casey is experienced in handling Criminal cases near the Pinellas County, Florida courthouses. Casey has a Pinellas Criminal defense resource here.

Pinellas Criminal Defense Needed Call 813-222-2220

Pinellas County Courthouse Criminal Defense Attorney 33778

Pinellas Criminal Defense Attorney 33778

View Larger Map of Pinellas Criminal Defense Attorney 33778

Pinellas Criminal Defense Lawyer Clearwater St Petersburg 33778

Defense Attorney Lawyer 33701

2011-07-13T18:04:00.000-05:00

Pinellas Criminal Defense Attorney needed in Pinellas County, Florida 33701? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with cases in Pinellas County 33701. Casey is experienced in handling Pinellas Criminal cases near the Pinellas County, Florida courthouses. Casey has a Pinellas Criminal Defense resource here.

Pinellas Criminal Defense Attorney Call 813-222-2220

Pinellas County Courthouse Criminal Defense Attorney 33701

Pinellas Criminal Defense Attorney 33701

View Larger Map of Pinellas Criminal Defense Attorney 33701

Pinellas Pinellas Criminal Defense Lawyer Clearwater St Petersburg 33701

Casey Anthony Trial | Not Guilty | iPhone Video

2011-07-05T13:38:00.012-05:00

Cheney Mason is Board Certified
Criminal Trial Law

Not Guilty

False Information to Law Enforcement is a Misdemeanor under Florida Statutes

Board Certified Criminal Trial Lawyer, Cheney Mason reached out to the jury in a very real way during closing arguments. Mr. Mason is a Board Certified expert in Criminal Trial law and his strategic decisions resulted in a defense acquittal on all but a few misdemeanors.

iPhone Video of Casey Anthony Verdict

Video of Not Guilty Verdict

Florida Statute: 843.02

Level: Misd (Misdemeanor)

Degree: 1st

Description: OBSTRUCTING OR OPPOSING AN OFFICER WITHOUT VIOLENCE

Title XLVI CRIMES

Chapter 843 OBSTRUCTING JUSTICE

843.02 Resisting officer without violence to his or her person.

Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

More Information on Obstruct or Oppose

Mobile Studio at Courthouse (2010)

From Court Mobile Studio

Casey Anthony Trial | Not Guilty | iPhone | Flash | No App Needed | Free

2011-06-29T09:15:00.038-05:00

Casey Anthony | Criminal Defense Attorney

Satellite Truck 2010

Not Guilty

False Information to Law Enforcement is a Misdemeanor under Florida Statutes

More Information on Obstruct or Oppose

iPhone Video of Casey Anthony Verdict

Florida Statute: 843.02
Level: Misd (Misdemeanor)
Degree: 1st

Description: OBSTRUCTING OR OPPOSING AN OFFICER WITHOUT VIOLENCE

Title XLVI CRIMES
Chapter 843 OBSTRUCTING JUSTICE

843.02 Resisting officer without violence to his or her person.

Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Mobile Studio at Courthouse (2010)

From Court Mobile Studio

Criminal Defense Attorney Lawyer

Hillsborough Warrant Attorney | Video

2011-06-22T13:48:00.000-05:00

Hillsborough Warrant Attorney

Arrest Warrant in Hillsborough County? Visit us here or call me toll free to discuss how we can help you or your family 1-877-793-9290 .

Pinellas Warrant Attorney | Video

2011-06-22T13:43:00.001-05:00

Pinellas Warrant Attorney

Arrest Warrant in Pinellas County? Visit us here or call me toll free to discuss how we can help you or your family 1-877-793-9290 .

Pasco Warrant Attorney

2011-06-21T18:59:00.000-05:00

Pasco Warrant Attorney

http://pascowarrantattorney.com/

Pinellas Warrant Attorney

2011-06-21T18:48:00.000-05:00

Pinellas Warrant Attorney

Pornography | Not Guilty | US District Court Florida

2011-06-21T00:02:00.000-05:00

Federal Defense Attorney just sent us news of a rare acquittal in a federal Pornography (18 U.S.C. § 2252) case involving a high profile and very experienced federal agent, Special Agent John Kuchta. We have removed the defendant's name and publish almost the entire ruling below.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

FT. MYERS DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 2:10-CR-71-FtM-36DNF

XXX

[Name removed from Opinion]

FINDINGS. CONCLUSIONS AND JUDGMENT

I. BACKGROUND

Defendant XXX is charged by Indictment with one count of knowingly possessing one or more visual depictions, which were produced using materials that had been mailed, shipped or transported in interstate and foreign commerce, that involve the use of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. §§2252(a)(4)(B), (b)(2) from January 26, 2010 through February 25, 2010 (Dkt. 1, p. 1). Defendant was also charged with one count of knowingly employing, using, persuading, inducing, enticing or coercing a minor to engage in sexually explicit conduct on January 27, 2010 for the purpose of producing a visual depiction of such conduct while using materials that had been mailed, shipped or transported in interstate or foreign commerce in violation of 18 U.S.C. §§2251(a), (e). Id. at pp. 1-2. However, during the trial, the Government moved to dismiss Count II, the production of child pornography. The Court granted the motion.

Pursuant to Federal Rule of Criminal Procedure 23(a), Defendant waived his right to a jury trial. As required by the Rule, Defendant filed a written waiver of his right to a jury trial, and the Government consented on May 9, 2011 (Dkt. 70). After a hearing, the Court concluded that Defendant's waiver was freely, knowingly and intelligently made (Dkt. 69). As such, the Court approved his request for a non-jury trial.

On May 10, 2011, the matter was tried before the Court. Prior to the trial, the parties filed stipulations with respect to certain facts (Dkt. 71, Ex. 10). The signed stipulations were admitted at trial as Government Exhibit 10. Additionally, the Government introduced several exhibits, to which Defendant did not object, for the Court to consider: 1) Exhibit 1 - Defendant's Samsung cellular telephone; 2) Exhibit 2a-2b Composite - a CD containing two video files from the Samsung cellular telephone that depict a minor completely nude; 3) Exhibit 3a-3e Composite - pictures taken of the residence; 4) Exhibit 4 - the white sock with a hole utilized to conceal the cellular telephone; 5) Exhibit 5 - a certified copy of the birth certificate of the minor; 6) Exhibit 6a-6d composite - pictures of the Samsung cellular telephone, made in Korea; 7) Exhibit 7a-7e Composite - pictures of the screen captures taken of the Samsung cellular telephone depicting the phone number of the telephone; 8) Exhibit 8a-8b Composite - pictures taken of the sock that the Samsung cellular telephone had been concealed in at the time of discovery; and 9) Exhibit 9 - the memory card containing the two videos in the format that the cellular telephone used to produce the video recordings; this memory card permits the video recordings to be viewed on the cellular telephone (Dkt. 71).

During the trial, the Government did not call a witness to testify during its case in chief. Instead, the Court viewed the two video recordings on two screens, a computer screen and Defendant’s Samsung cellular telephone screen. After presenting the videos, the Government rested. Defendant moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(a), and the Court heard oral arguments from the parties before denying the Motion.

The demonstrative aids were: 1) Sally Mann, Immediate Family (Aperture Foundation 1 1992), Aperture Foundation, 1992; 2) Jock Sturges, The Last Day of Summer (Aperture Foundation 1991); and 3) The Blue Lagoon (Columbia Pictures 1980). -3-

Defendant called one expert witness, Mr. Marcus Lawson. Mr. Lawson is the president of a computer forensic and legal consulting firm. He has testified on behalf of the prosecution and defense in several criminal cases involving child pornography over approximately eleven (11) years. Based on his review of the two videos and his application of the six Dost factors, Mr. Lawson opined that only the fourth factor applied because the minor was nude. Consequently, Mr. Lawson concluded that the videos did not depict child pornography because they did not involve the lascivious exhibition of the genital area of a minor.

Mr. Lawson utilized three exhibits as demonstrative aids to assist in presenting his 1 testimony. The Government objected, and the Court overruled the objection. With the use of the demonstrative aids, Mr. Lawson testified about what he considers and looks for when determining whether a visual depiction is child pornography. Defense Counsel moved to enter these exhibits into evidence upon the conclusion of the expert’s testimony. The Government objected on the basis of relevance, and the Court sustained the objection. The Government then proceeded to cross-examine Mr. Lawson, which was followed by Defense Counsel’s re-direct. The Government then called a rebuttal expert, Special Agent John Kuchta. Special Agent Kuchta testified about his experience in investigating child pornography cases on behalf of the Government. Special Agent Kuchta has over twenty (20) years of experience with the Federal Bureau of Investigations (FBI) and also served as special prosecutor for the United States Attorney where he prosecuted child pornography cases. He has testified as a witness in several cases as a FBI special agent, and this trial was his first time testifying as an expert witness.

Special Agent Kuchta

Special Agent Kuchta testified that he applied the five Dost factors, although there are six. 2 The Court is unclear as to which of the Dost factors Special Agent Kuchta utilized in forming his opinion that the two videos constituted child pornography. -4- determined that the two videos, broken down frame by frame, constituted a collection of child pornography images. When applying the Dost factors, Special Agent Kuchta opined that the two 2 videos constituted child pornography because they included the lascivious exhibition of the genital area of a minor. Special Agent Kuchta also opined that the two videos were sexual in nature because they were voyeuristic.

Following Defense Counsel’s cross-examination of Special Agent Kuchta, the Government conducted a re-direct examination. Defendant renewed his motion for judgment of acquittal, and the Court again heard oral arguments and denied the Motion. The parties then proceeded with closing arguments.

II. STIPULATED FACTS

The parties stipulated to the following, as set forth in Exhibit 10:

A. Defendant XXX acknowledges that: first, he knowingly possessed one or more video recordings on his cellular telephone in Charlotte County, Florida, which depict a nude minor; second, the video recordings were made using Defendant's Samsung cellular telephone, which was transported in interstate and foreign commerce; and third, when Defendant possessed the video recordings, he knew that such video recordings were of a minor who was completely nude (Ex. 10, p. 1).

B. On four occasions, in Charlotte County, in the Middle District of Florida, Defendant utilized his Samsung cellular telephone, Model SPH-M560, DEC No.: 268435458310483573, HEX No.: A00000179FF775 Green, assembled in Korea to record videos of a 13 year old minor female while she is in a bathroom. Two such video recordings made of this minor female show her in various states of undress, including being totally nude (Ex. 10, pp. 1-2).

C. On February 25, 2010, the 13 year old minor discovered that she was being videotaped when she dropped her phone from the bathroom counter onto the floor of the bathroom and bent down to retrieve her phone. At that time, she noticed Defendant's cellular telephone concealed in a sock with a hole, which allowed the lens to be visible and to view the room. When the minor realized that she was being recorded, she caused the phone to exit its video mode and thereby stopped it from recording, without saving the video then being made. The minor looked further at the video recordings contained on Defendant's cellular telephone. Upon observing another video recording of her taken on a previous day while she was nude in the bathroom, the minor deleted that additional video recording from Defendant's cellular telephone and observed two more videos of herself while nude in the bathroom (Ex. 10, p. 2).

D. On February 25, 2010, the minor's mother viewed the contents of the video recordings from Defendant's cellular phone and observed Defendant captured in the videos while setting up the cell phone in the bathroom of her residence. The mother also observed her 13 year old nude daughter in the videos. Id.

E. On February 25, 2010, the minor and her mother took Defendant's cellular telephone to the Charlotte County's Sheriff Office. Id.

F. Defendant knew that the minor was 13 years old at the time. Defendant had known the minor for four or five years. Further, Defendant was aware that the minor attended middle school at this time (Ex. 10, pp. 2-3).

G. Defendant used a Samsung cellular telephone, manufactured in Korea and previously transported in interstate and foreign commerce, to video record the minor female (Dkt. 10, p. 3).

F. Subsequent to the execution of a state search warrant, the Charlotte County Sheriff's Office conducted a forensic analysis on Defendant's cellular telephone. Two video recordings depicting the nude minor were discovered on the cellular telephone. Id.

G. Video SSPX0003, recorded on or about January 26, 2010, depicts Defendant wearing shorts and a t-shirt, setting up his cellular telephone to video the entrance of the shower. Defendant placed the phone near the floor facing upward. Defendant's face is visible in the video. Defendant is seen covering his cellular telephone with clothing to conceal it. Defendant positioned the phone to intentionally capture and video record the area of the master bathroom directly in front of the glass shower as well as the shower area. Defendant spent approximately ten (10) minutes adjusting and checking the position of the cellular phone. Defendant then turned off the lights in the bathroom prior to exiting. The video continued to record in the darkened bathroom and captured the 13 year old minor thereafter entering the bathroom and turning on the lights. The video depicts the minor as she starts the shower and undresses. In the video, the minor is depicted completely nude in the center of the screen. Her breasts, buttocks and pubic area are visible in the center of the video recording. The minor then enters the shower. The video also captures the minor completely nude as she steps out of the shower and reaches for her towel. The minor's breasts and pubic area are visible in the center of the video recording. The minor turns out the bathroom lights and leaves the bathroom. The video is darkened for approximately two (2) minutes before Defendant returns to the bathroom to shut off the video recording and retrieve his phone (Ex. 10, pp. 3-4).

H. Video SSPX0002, recorded on or about January 27, 2010, depicts Defendant wearing jeans and a stripped shirt, again setting up his cellular telephone in the bathroom to video record, as on the previous day. Defendant's face is visible in the video. Defendant is seen covering his cellular telephone with clothing to conceal it. The video again captures the area of the master bathroom directly in front of the glass shower as well as the shower area. Defendant spends approximately ten (10) minutes adjusting and checking the position of the cellular phone. Defendant then turned off the lights in the bathroom prior to exiting. The video continued to record in the darkened bathroom and captured the 13 year old minor entering the bathroom and turning on the lights. The video depicts the minor as she starts the shower and undresses. In the video, the minor is seen completely nude in the center of the screen. Her breasts, buttocks and pubic area are visible in the center of the video recording. The minor then enters the shower. The video also captures the minor completely nude as she steps out of the shower briefly to check her cellular phone and again later when she finishes her shower and reaches for her towel. The minor's breasts and pubic area are visible in the center of the video recording. The minor turns out the bathroom lights as she leaves the bathroom. The video is darkened for approximately two (2) minutes before Defendant returns to the bathroom to shut off the video recording and retrieve his cellular phone (Ex. 10, p. 4).

I. Aside from Defendant setting up the cellular telephone to video record, the minor is the only person depicted in each of the resulting video recordings (Ex. 10, p. 5).

J. Defendant set up his cellular telephone to intentionally video record the minor in the bathroom as she undressed and showered before he left the resident to drive the minor's mother to work. Defendant anticipated both on January 26 and 27, 2010, that the minor would use that

bathroom to shower before she left for school. Id.

III. ADDITIONAL FINDINGS OF FACT

In addition to the above facts to which the parties have stipulated, the Court finds that the evidence establishes or fails to establish the following:

A In the video recorded on January 26, 2011, the portion of the video depicting the minor entering and exiting the bathroom lasts approximately eight (8) minutes and thirteen (13) seconds. During the video recording, the minor’s pubic area is visible on one occasion, for approximately nine (9) seconds.

B. In the video recorded on January 27, 2011, the portion of the video depicting the minor entering and exiting the bathroom lasts approximately six (6) minutes and twenty-two (22) seconds. During the video recording, the minor’s pubic area is visible on two occasions. On the first occasion, the minor’s pubic area is visible for approximately four (4) seconds. On the second occasion, the minor’s pubic area is visible for approximately ten (10) seconds.

C. There is no evidence that Defendant uploaded the video footage of the minor to a computer or that Defendant distributed the video footage.

D. There is no evidence that Defendant had other images of nude children in his possession.

IV. CONCLUSIONS OF LAW

Defendant is charged with a violation of 18 U.S.C. §§2252(a)(4)(B), which provides: Any person who . . . knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or shipped or transported, by any means including by computer, if (I) the producing of such visual Section (b)(2) provides: 3 Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both, but if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of Title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years. -9- depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction of such conduct; shall be punished as provided in subsection (b) of this section.3 In this case, Defendant is charged with knowingly possessing a video with a visual depiction of a minor engaged in sexually explicit conduct. “Sexually explicit conduct” is defined as “actual or simulated: (I) sexual intercourse . . .; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. §2256(a)(2)(A); U.S. v. Williams, 444 F.3d 1286, 1294 (11th Cir. 2006), rev’d on other grounds, 553 U.S. 285, 307, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008); see U.S. v. Johnson, No. 10-2350, 2011 WL 1236442, at *2 (8th Cir. Apr. 5, 2011). The videos at issue here do not depict sexual intercourse, bestiality, masturbation, or sadistic or masochistic abuse.

Therefore, the pertinent provision of the definition is the lascivious exhibition of the genitals or pubic area of a minor. As such, the issue before the Court is whether the videos on Defendant’s cellular phone, used to secretly record the minor in the bathroom, depict the lascivious exhibition of the genitals and pubic area of the 13-year-old minor.

A. Lascivious Exhibition of the Genitals or Pubic Area

“Virtually all lower courts that have addressed the meaning of ‘lascivious exhibition’ have embraced the widely followed ‘Dost’ test, originally developed by a California district court and affirmed in an opinion by the Ninth Circuit.” Williams, 444 F.3d at 1299 n. 62 (citing U.S. v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d, U.S. v. Wiegant, 812 F.2d 1239 (9th Cir. 1987)).

These factors are:

1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. U.S. v. Steen, 634 F.3d 822, 826 (5th Cir. 2011)(citing Dost, 636 F. Supp. at 832). These factors are “neither definitive nor exhaustive.” U.S. v. Horn, 187 F.3d 781, 789 (8th Cir. 1999), cert. denied, 529 U.S. 1029, 120 S. Ct. 1442, 146 L. Ed. 2d 330 (2000).

Recent cases have considered the application of the Dost factors to facts similar to the present case, where a Defendant is charged with secretly recording minors engaged in “sexually explicit conduct,” specifically the “lascivious exhibition of the genitals or pubic area.” In U.S. v. Steen, the defendant secretly recorded several individuals undressing in a tanning salon. The Fifth Circuit reversed the conviction of the defendant following a jury trial for the production of child pornography under Section 2251(a) because there was insufficient evidence that the defendant obtained images of the lascivious exhibition of the minor’s genitals or pubic area. 634 F.3d at 828.

Specifically, the Fifth Circuit found that: 1) the focal point of the visual depiction was not on the child’s pubic area because it was a brief view of the pubic area for 1.5 seconds; 2) the setting was not sexually suggestive, as it was a tanning salon; 3) the pose of the child was not unnatural because she was being filmed secretly and acting naturally; 4) the child neither acted coy nor displayed a willingness to engage in sexual activity, making the fourth factor irrelevant; and 5) there was insufficient evidence that the image was meant to elicit a sexual response in the viewer, as opposed to merely exciting the viewer as a voyeur. Id. at 827-28. Furthermore, the Fifth Circuit emphasized that the secret recording of the minor by the defendant, who also secretly recorded adults, appeared to be no more than voyeurism. Id. at 824, 828. The Fifth Circuit noted that: 1) the defendant’s computer only had adult pornographic images; 2) there was no evidence that the tanning salon video footage was uploaded; and 3) the defendant had not distributed the images. Id. at 825.

To contrast, in U.S. v. Johnson, the defendant, a wrestling coach, secretly recorded minors undressing and weighing themselves nude at his direction. The Eighth Circuit reversed the district court’s grant of a motion for judgment of acquittal following a jury conviction of the defendant for attempting to violate 18 U.S.C. §2251. 2011 WL 1236442, at *8. In reversing the lower court, the Eighth Circuit emphasized that the prosecution charged the defendant under an attempt theory. Id. at *4-5. The Court noted that three of the factors, sexually suggestive setting, inappropriate attire or unnatural poses, and sexual coyness, were irrelevant based on the facts. Id. at *6. However, the Court considered: 1) the focal point of the visual images was on the minors’ genital area because the defendant adjusted the recording and zoomed in on the area where the females’ genitals would be if they faced the camera; 2) the females were totally nude, and their facial features were of little or no importance; 3) the image was recorded to elicit a sexual response in the viewer, especially in light of the defendant’s admission that he recorded the minors because he wanted to see what they looked like naked and that his “pervertedness” got the best of him. Id. at *5-6.

B. Application of the Dost Factors

The parties do not contest the fourth factor, the minor’s nudity. As stipulated, the minor was captured completely nude in the two videos. However, mere nudity does not constitute the lascivious exhibition of the genitals or pubic area. See U.S. v. Kemmerling, 285 F.3d 644, 645-46 (8th Cir.), cert. denied, 537 U.S. 860, 123 S. Ct. 237, 154 L. Ed. 2d 99 (2002); Johnson, 2011 WL 1236442, at *4; U.S. v. Soderstrand, 412 F.3d 1146, 1151-52 (10th Cir. 2005); U.S. v. Amirault, 173 F.3d 28, 35 (3d Cir. 1999). Additionally, it is undisputed that the minor was not exhibiting sexual coyness or a willingness to engage in sexual activity because she did not know she was being recorded. See Steen, 634 F.3d at 827; U.S. v. Helton, No. CR-07-70-T, 2007 WL 1674196, at *7 (W.D. Okla. June 7, 2007), aff’d, 302 Fed. Appx. 842 (8th Cir. Dec. 15, 2008).

Therefore, the Court focuses on the remaining four Dost factors.

1. Focal Point

When considering whether the visual depiction focused on the minor’s genitals or pubic area with secret recordings, courts consider the position of the camera used to capture the images. In certain instances, using the zoom feature to focus on the minor’s genital area and capturing images where the face appears to be of little or no importance is sufficient evidence for the court to determine that the focal point was the minor’s genital or pubic area. Johnson, 2011 WL 1236442,

Furthermore, simply exposing one’s breasts on video does not constitute a lascivious 4 exhibition of the genitals. Tilton, 2007 WL 2492464, at *2 n. 7. at *6 (“A reasonable juror could find from the evidence that Johnson adjusted the zoom feature in an attempt to tighten the focus of the camera on the area where the females’ genitals would be if they were to face the camera, and thereby determine that the first Dost factor was satisfied.”); Tilton v. Playboy Entertainment Group, et al., No. 8:05-cv-692-T-30TGW, at *2 (M.D. Fla. July 30, 2007)(“These photographs and/or freeze-frame images focus on the Plaintiff’s pubic area, which is fully covered by her bathing suit. Her legs are spread apart and she is lying on a stage.”); Helton, 2007 WL 1674196, at *7 (“[The] defendant’s placement of the camcorder immediately opposite the toilet seat at a level and angle insuring that the resulting video would be aimed at the pubic and genital areas of anyone sitting on the toilet . . . .”). However, in other instances where the image of the minor’s pubic area happens to be captured, as opposed to being the focal point, courts hold that there is not sufficient evidence of the first Dost factor. Steen, 634 F.3d at 827 (“[The minor’s] pubic region is only visible for about 1.5 seconds. Moreover, the film did not accent the pubic area–to the contrary, the brief seconds the pubic region is visible, it is on the far side of the image’s frame.”); Amirault, 173 F.3d at 33 (“Although the girl’s pubic area is on clear display, there is no close-up view of the groin, and the genitals are not featured in the center of the composition.”); Tilton v. Deslin Hotels, Inc., et al., No. 8:05-cv-692-T-30TGW, 2007 WL 2492464, at *2 n. 6 (M.D. Fla. Aug. 30, 2007)(“None of the video clips filed from the Promotional video were focused or framed on any persons’ genital area.”). 4 Upon review of the video recordings, both on a computer monitor and on Defendant’s cellular telephone, the Court finds that the focal point of the recordings is not on the minor’s genitals

The Court notes the Government’s reliance on U.S. v. Gool, No. CR 06-0544-JAJ, 2008 5 WL 1735655, at *3 (S.D. Iowa Apr. 11, 2008), to support the assertion that videotaping a minor disrobing, entering, and exiting the shower is focusing on the pubic area. However, the defendant in that case pled guilty to sexual exploitation of children and possession of child pornography. The trial court only issued an opinion setting forth reasons for the sentence and did not do an analysis of the evidence under the Dost test. -14- or pubic area. First, the pubic area of the minor was only a small fraction of the video recordings.

In the first video, which lasts over 8 minutes, the minor’s pubic area is visible for approximately 9 seconds. In the second video, which lasts over 6 minutes, the minor’s pubic area is visible for 14 seconds. Second, there was no close-up, zoom, or highlight of the minor’s pubic area in either video recording. The minor is depicted completely nude on the videos. The video recordings were made on a cell phone which was left unattended and recording in the bathroom. The phone was positioned on the floor in a pile of clothing to capture and record the area of the bathroom directly in front of the glass shower as well as the shower area. Therefore, the focal point of the video recordings is not on the minor’s pubic area.5

2. Sexually Suggestive Setting

Courts have differing views on whether a bathroom and/or shower is a sexually suggestive setting. See U.S. v. Larkin, 629 F.3d 177, 183 (3d Cir. 2010)(“Standing alone, the setting is not commonly associated with sexual activity. But showers and bathtubs are frequent hosts to fantasy sexual encounters as portrayed on television and in film. It is potentially as much of a setting for fantasy sexual activity as is an adult’s bedroom.”); U.S. v. Clark, Crim. A. No. 09-33 GMS, 2010 WL 3488138, at *6 (D. Del. Aug. 30, 2010)(“[A] bathroom is not necessarily sexually suggestive. However . . . the bathroom is perhaps the most common room in which a person exposes his or her genitals and pubic area.”); Helton, 2007 WL 1674196, at *7 (“[T]he government conceded that a bathroom is not necessarily a sexually suggestive location.”). For such a setting to be sexually suggestive, there should be sufficient evidence of the other Dost factors, such as unnatural posing or a focus on the pubic area. See Larkin, 629 F.3d at 183 (“[The minor] does not appear to be in the act of bathing, there is no water in the bathtub, and she does not appear to be wet.”); compare Doe v. Chamberlin, 299 F.3d 192,196 (3d Cir. 2002)(“[A]part from the girls in the shower being unclothed, no reasonable juror could find a Dost factor present . . . An open shower near a beach was not a place associated with sexual activity.”); Helton, 2007 WL 1674196, at *7 (finding that the bathroom was sexually suggestive because the defendant focused the camera on the minors’ genitals and pubic area).

The question as to whether the bathroom and shower area where the minor was recorded is a sexually suggestive setting is a close question. The recording does not focus on the minor’s genitals or pubic area, and she was acting naturally when disrobing, showering and covering herself upon exiting the shower, which is noted later in the Order. Based on the evidence presented, the Court finds that the bathroom and shower setting is not sexually suggestive.

3. Inappropriate Attire/Unnatural Pose

It is natural for one to be nude when showering. See Doe, 299 F.3d at 196 (“It was natural to be nude when washing off from the sand.”). Furthermore, if the minor is being secretly recorded, she does not know that she is being filmed and thus, is not in an unnatural pose. See Steen, 634 F.3d at 827 (“Because she did not know she was being filmed, she is, of course, acting naturally.”). Therefore, the Court finds that the minor was not inappropriately dressed for her age or in an unnatural pose in the video recordings. See also U.S. v. Frabizio, 459 F.3d 80, 89-90 (1st Cir. 2006)(noting the confusion on 6 whether an objective or subjective standard is used when considering whether the image is lascivious). See Johnson, 2011 WL 1236442, at *6 (“A reasonable jury could draw a reasonable 7 inference that Johnson intended the videos to be sexual in nature and to elicit a sexual response in the viewer . . . The jury was carefully instructed that it was not to decide ‘whether the pictures appealed, or were intended to appeal, to the defendant’s sexual interests, only whether they appear to be of a sexual character.’”); Amirault, 173 F.3d at 35 (“[T]he focus should be on the objective criteria of the photograph’s design.”); U.S. v. Villiard, 885 F.2d 117, 125 (3d Cir. 1989)(“If we were to conclude that the photographs were lascivious merely because Villiard found them sexually arousing, we would be engaging in conclusory bootstrapping rather than the task at hand-a legal analysis of the sufficiency of the evidence of lasciviousness.”); Gool, 2008 WL 1735655, at *3 (“It is obvious that the selection of these scenes made the video objectively sexual in nature.”); Helton, 2007 WL 1674196, at *8 (citing Villiard, 885 F.2d at 125 and noting that the court must focus on the intended effect on the viewer as opposed to the actual effect on the viewer). -16-

4. Designed to Elicit a Sexual Response

“The sixth factor is the most difficult to apply–whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” Steen, 634 F.3d at 827-28; see Amirault, 173 F.3d at 34 (“This is the most confusing and contentious of the Dost factors.”). In considering this factor, the inquiries are: “Is this a subjective or objective standard, and should we be evaluating the response of an average viewer or the specific defendant in this case? Moreover, is the intent to elicit a sexual response analyzed from the perspective of the [visual depiction’s] composition, or from extrinsic evidence (such as where the [visual depiction] was obtained, who the photographer [or recorder] was, etc.)?” Amirault, 173 F.3d at 34 (alterations added). The Eleventh Circuit has not 6 determined whether the sixth factor of the Dost test should be analyzed using an objective or subjective standard.

As guidance, the Court considers determinations from other jurisdictions. Some courts have found that an objective standard is used to determine whether the visual depiction was made to elicit a sexual response. Other courts have used a subjective standard and 7 See U.S. v. Overton, 573 F.3d 679, 689 (9th Cir. 2009)(“The homemade images of [the 8 minor] were intended and designed to elicit a sexual response in the voyeur-namely, in Overton himself or likeminded individuals.”); U.S. v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008)(“A reasonable jury could therefore find that Rivera composed the images in order to elicit a sexual response in a viewer-himself.”); Larkin, 629 F.3d at 184 (“Larkin trafficked this photograph over the internet to an interested pedophile, whom she acknowledged ‘would find them sexually stimulating because of his predilection for young children’ . . . [therefore] Larkin designed the image depicted in this photograph to arouse.”); U.S. v. Knox, 32 F.3d 733, 747 (3d Cir. 1994)(“Although none of these factors is alone dispositive, the totality of these factors lead us to conclude that the minor subjects were engaged in conduct-namely, the exhibition of their genitals or pubic area-which would appeal to the lascivious interest of an audience of pedophiles.”); Weigand, 812 F.2d 1239, 1244 (9th Cir. 1987)(“[L]asciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself and likeminded pedophiles . . . . to arouse or satisfy the sexual cravings of a voyeur.”); Tilton, 2007 WL 2208903, at *2 (“Furthermore, taken in conjunction with the www.bikinivoyeur.com website advertisements, the images seem to elicit a sexual response from subscribers (or potential subscribers) to the website.”); U.S. v. Cullipher, No. 2:07CR00001, 2007 WL 1830711 (W.D. Va. June 25, 2007)(“His intent was to satisfy his own obsessions without any commercial or financial motivation.”). Specifically, the Sixth Circuit considers: 1) where, when and under what circumstances the 9 photographs were taken; 2) the presence of other images of the same victim(s) taken at or around the same time; and 3) any statements a defendant made about the images. U.S. v. Brown, 579 F.3d 672, 683-84 (6th Cir. 2009). See Johnson, 2011 WL 1236442, at *5 (noting that the jury could consider an “additional 10 factor of whether the picture portrays the minor as a sexual object.”)(quotation omitted); Brown, 579 F.3d at 683 (“In light of these competing concerns, we find that it is appropriate to apply a ‘limited context’ test that permits consideration of the context in which the images were taken, but limits the consideration of the contextual evidence to the circumstances directly related to the taking of the images.”); U.S. v. Wallenfang, 568 F.3d 649, 659-660 (8th Cir. 2009)(“[B]y uploading the pictures of the child to the newsgroup, a jury could reasonably find that Wallenfang portrayed the child as a sexual object for viewers.”). -17- focused on whether the visual depiction of the minor was meant to elicit a sexual response in the defendant and likeminded viewers.

Still other courts have used a hybrid standard or considered a 8 9 “minor as a sexual object” factor. 10 Here, the Court does not determine whether an objective, subjective or hybrid standard should be used in considering the sixth Dost factor. There is insufficient evidence that the videos Under this statute, the term “private area of the individual means the naked or 11 undergarment clad genitals, pubic area, buttocks, or female breast of the individual. Id. at §1801(b)(3). Additionally, under the circumstances in which that individual has a reasonable expectation of privacy means: “(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or (B) circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private area.” Id. at §1801(b)(5). -18- were meant to elicit a sexual response in the viewer.

Unlike the facts in U.S. v. Johnson, the Defendant here made no admissions about the images. Instead, in considering the totality of the evidence presented, the Court finds that the images obtained by Defendant’s secret recording of the minor constitute voyeurism and not child pornography. First, the videos could not be considered to have been intended to elicit a sexual response in a viewer any more than mere nudity would, which is insufficient alone to find that an image depicts the lascivious exhibition of the genitals. Second, the Court notes that the ordinary meaning of “lascivious exhibition” is the “depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.” Steen, 634 F.3d at 828. As previously noted, the pubic area of the minor is not the focal point of the video recordings. Third, Defendant’s conduct of secretly recording the minor is undisputably voyeurism. Under 18 U.S.C. §1801(a), anyone who has the intent to capture an image of a private area of an individual without their consent and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy commits video voyeurism. Fourth, there is no evidence tending to support a finding that 11 Defendant is sexually excited by viewing minors as opposed to being merely excited by engaging in voyeurism. Based on these determinations, the Court finds that the Government did not present sufficient evidence to support a finding that Defendant’s video recordings included a minor engaging in sexually explicit conduct, specifically the lascivious exhibition of the minor’s genitals or pubic area.

V. CONCLUSION AND JUDGMENT

It is undisputed that Defendant engaged in voyeurism when he recorded the minor while she was in the bathroom, undressing, and showering. Although Defendant's conduct is reprehensible, unacceptable and must not be condoned, the images that he recorded on his cellular telephone do not constitute child pornography under 18 U.S.C. §2252(a)(4)(B). Accordingly, the Court finds that the Government has not satisfied its burden of proof beyond a reasonable doubt and the Defendant is not guilty of the crime charged in the Indictment, 18 U.S.C. § 2252(a)(4)(B).

The Defendant may go hence without day.

DONE AND ORDERED at Ft. Myers, Florida, on June 15, 2011.

COPIES TO:

COUNSEL OF RECORD

Source Case 2:10-cr-00071-CEH-DNF Document 82

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Tampa Federal Conviction Reversed by United States Supreme Court

2011-05-26T10:37:00.001-05:00

Conviction Overturned on Appeal

Tampa Defense Attorney / Lawyer previously reported here a team of Defense Attorneys from Tampa, Florida went to the United States Supreme Court seeking to overturn a conviction. Today we find out the case was overturned. Congratulations to Steve Crawford and Tampa Appeal Attorney / Lawyer Ken Siegel. The complete Opinion is available as a free download here:

Tampa Defense Attorney Supreme Court Opinion.

FOWLER v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 10–5443. Argued March 29, 2011—Decided May 26, 2011

While preparing to rob a bank, petitioner Fowler and others were discovered by a local police officer, whom Fowler killed. Fowler was convicted of violating the federal witness tampering statute, which makes it a crime “to kill another person, with intent to . . . prevent the communication by any person to a [Federal] law enforcement officer” of “information relating to the . . . possible commission of a Federal offense,” 18 U. S. C. §1512(a)(1)(C). Rejecting Fowler’s argument that the evidence was insufficient to show that he had killed the officer intending to prevent him from communicating with a federal officer, the Eleventh Circuit held that a showing of a possible or potential communication to federal authorities was sufficient.

Held: In such circumstances, the Government must establish a §1512(a)(1)(C) violation by showing there was a reasonable likelihood that a relevant communication would have been made to a federal officer. Pp. 3–10.

(a) In a §1512(a)(1)(C) prosecution, “no state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an . . . employee of the Federal Government,” §1512(g)(2). Thus, the Government must prove (1) a killing, (2) committed with a particular intent, namely, an intent (a) to “prevent” a “communication” (b) about “the commission or possible commission of a Federal offense” (c) to a federal “law enforcement officer.” P. 3.

(b) Nothing in §1512(a)(1)(C)’s language limits it to instances in which the defendant has some identifiable law enforcement officers particularly in mind. Any such limitation would conflict with the statute’s basic purpose. Witness tampering may prove more serious (and more effective) when the crime takes place before the victim has engaged in any communication at all with officers—at a time when the precise communication and nature of the officer who may receive it are not yet known. Hence, the statute covers a defendant, like petitioner, who kills with intent to prevent communication with any and all officers. The Court must consequently decide what, if anything, the Government must show about the likelihood of a hypothetical communication with a federal officer where the defendant did not think specifically about any particular communication or its recipient. Pp. 4–7.

(c) To determine what the Government must prove in such instances, the Court looks to the dictionary definition of the statutory word “prevent,” which means rendering an “intended,” “possible,” or “likely” event impractical or impossible by anticipatory action. No one suggests that the word “intended” sets forth the appropriate standard here. The Government and the Eleventh Circuit would rest their standard on the word “possible.” But that standard would eliminate the independent force of the statutory “federal officer” requirement, and would extend the statute beyond its intended, basically federal, scope. Fashioning a standard based on the word “likely” is consistent with the statute’s language and objectives. Thus, where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal officers only if there is a reasonable likelihood under the circumstances that, in the absence of the killing, at least one of the relevant communications would have been made to a federal officer. The Government need not show that such a communication, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not. But it must show that the likelihood of communication to a federal officer was more than remote, outlandish, or hypothetical. Pp. 7–10.

(d) Because Fowler’s argument that the evidence is insufficient to satisfy a “reasonable likelihood” standard was not raised at trial, the lower courts must determine whether, and how, the standard applies in this case. P. 10. 603 F. 3d 883, vacated and remanded.

Criminal Attorney Lawyer 33572

2011-05-24T17:50:00.000-05:00

Criminal Defense Attorney needed in Apollo Beach, Florida 33572? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with cases Near Apollo Beach. Casey's office is conveniently located with free parking in the Channelside District, a few blocks from the Hillsborough County Courthouse.

Tell Me Your Story. 813-222-2220.

Apollo Beach Criminal Defense Attorney Lawyer 33572

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Criminal Attorney Lawyer 33510

2011-05-24T17:24:00.000-05:00

Criminal Defense Attorney needed in Brandon, Florida 33510? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with Criminal Charges Near Brandon. Casey's office is conveniently located with free parking in the Channelside District, a few blocks from the Hillsborough County Courthouse.

Tell Me Your Story. 813-222-2220.

Brandon Criminal Lawyer Attorney 33510

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Criminal Attorney Lawyer 33625

2011-05-24T15:36:00.000-05:00

Criminal Defense Attorney needed in Citrus Park in Hillsborough County, Florida 33625? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with Criminal charges in or Near Citrus Park. Casey's office is conveniently located in the Channelside District, minutes from the Hillsborough County Courthouse.

Tell Casey Your Story. 813-222-2220.

Citrus Park Criminal Lawyer Attorney 33625

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Criminal Attorney Lawyer 33615

2011-05-24T15:16:00.000-05:00

Criminal Defense Attorney needed in Town N Country in Hillsborough County, Florida 33615? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with Criminal charges in or Near Town N Country. Casey's office is conveniently located in the Channelside District, minutes from the Hillsborough County Courthouse.

Tell Casey Your Story. 813-222-2220.

Town N Country Criminal Lawyer Attorney 33615

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Criminal Attorney Lawyer 33611

2011-05-24T14:28:00.000-05:00

Criminal Defense Attorney needed in Bayshore Beautiful in Tampa, Florida 33611? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with problems in or Near Bayshore Boulevard. Casey's office is conveniently located in the Channelside District, minutes from the Hillsborough County Courthouse and close to Bayshore.

Tell Casey Your Story. 813-222-2220.

Bayshore Criminal Lawyer Attorney 33611

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Criminal Attorney Lawyer 33609

2011-05-24T10:38:00.000-05:00

Criminal Defense Attorney needed in Parkland Estates in Tampa, Florida 33609? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with problems in or Near Parkland Estates. Casey's office is conveniently located in the Channelside District, minutes from the Hillsborough County Courthouse and close to Parkland Estates.

Tell Me Your Story. 813-222-2220.

Parkland Estates Criminal Lawyer Attorney 33609

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Criminal Attorney Lawyer 33618

2011-05-23T23:23:00.000-05:00

Criminal Defense Attorney needed in Northdale or Carrollwood in Florida near 33618? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with cases Near Carrollwood or Northdale. Casey's office is conveniently located in the Channelside District, near the Hillsborough County Courthouse.

Tell Me Your Story. 813-222-2220.

Criminal Lawyer Attorney 33618

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Criminal Attorney Lawyer 34601

2011-05-21T14:59:00.000-05:00

Criminal Defense Attorney needed in Hernando County, Florida 34601? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with criminal cases in Hernando County 34601. Casey is experienced in handling Criminal cases near the Brooksville, Florida courthouse.

Tell Me Your Story. Toll Free 1-877-793-9290.

Brooksville Courthouse | Criminal Attorney Lawyer 34601

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Attorney Lawyer 33563

2011-05-20T10:46:00.000-05:00

Criminal Defense Attorney needed in Plant City 33563? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with cases Near Plant City. Casey was a prosecutor in the Plant City County Courthouse.

Tell Me Your Story. 813-222-2220.

New Courthouse Plant City Attorney 33563

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Criminal Defense Attorney 33626

2011-05-18T18:04:00.000-05:00

Criminal Defense Attorney needed in Westchase 33626? Casey Ebsary is a Board Certified Criminal Trial Lawyer who helps with charges in and near the Westchase area. Casey's office is conveniently located in the Channelside District near the Courthouse.

Tell Me Your Story. 813-222-2220.

Defense Attorney 33626

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Criminal Defense Attorney 33556

2011-05-18T11:38:00.000-05:00

Criminal Defense Attorney needed in Odessa, Florida 33556? Casey Ebsary is a Board Certified Criminal Trial Lawyer who can help with cases Near Odessa. Casey's office is conveniently located in the Channelside District, minutes from the Hillsborough County Courthouse.

Tell Me Your Story. 813-222-2220.

Criminal Defense Lawyer Attorney 33556

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Loud Car Stereo Law Silenced | Defense Attorney | Complete Opinion Here

2011-05-13T21:58:00.003-05:00

Criminal Defense | Noise Law Struck

Defense Attorney / Lawyer in Tampa, Florida has completed a review of the recent declaration by a Florida Appeals Court that Florida Statute 316.3045(1)(a) was unconstitutional. The Traffic law made operation of radios or other mechanical sound making devices or instruments in vehicle plainly audible at a distance of 25 feet or more from the vehicle illegal.

The Feds have written a 50 page Manual on how to enforce laws like the Florida Statute that has been invalidated. You can check that tome about Car Stereo Law Enforcement out here.

The court found the statute unconstitutional. The statute exempted business and political speech and the exemptions do not serve a compelling state interest, the statute is not content-neutral, and is an unconstitutional suppression of protected speech.

The complete Noise Ordinance Decision is available here from a Criminal Defense Attorney as a Free Download.

Is the Law in your Traffic Case Valid? Call Me Toll Free to Discuss. 1-877-793-9290 .

Case Excerpts:

"[S]ection 316.3045, Florida Statutes (2007). . . restricts the volume at which a car stereo system may be played on a public street, but it exempts vehicles being used for business or political purposes, which in the normal course of conducting such business use soundmaking devices. "

The statute provides: "Operation of radios or other mechanical soundmaking devices or instruments in vehicles; exemptions —

(1) It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is:

(a) Plainly audible at a distance of 25 feet or more from the motor vehicle; or (b) Louder than necessary for the convenient hearing by persons inside the vehicle in areas adjoining churches, schools, or hospitals.

(2) The provisions of this section shall not apply to any law enforcement motor vehicle equipped with any communication device necessary in the performance of law enforcement duties or to any emergency vehicle equipped with any communication device necessary in the performance of any emergency procedures.

(3) The provisions of this section do not apply to motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices. The provisions of this subsection shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from regulating the time and manner in which such business may be operated.

(4) The provisions of this section do not apply to the noise made by a horn or other warning device required or permitted by s. 316.271. The Department of Highway Safety and Motor Vehicles shall promulgate rules defining "plainly audible" and establish standards regarding how sound should be measured by law enforcement personnel who enforce the provisions of this section.

(5) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318."

"The circuit court carefully considered each argument and concluded that the issue ruled on by the two district courts was essentially the same, i.e., whether the "plainly audible" standard was too vague and overbroad to pass constitutional scrutiny. "

"Additionally, while recognizing our agreement with the reasoning and conclusion reached by the circuit court, we note that section 316.3045 suffers from a more fundamental infirmity. "

"A case that is directly on point, and was cited favorably in Cannon, is People v. Jones, 721 N.E.2d 546 (Ill. 1999). In that case, the court held that a sound amplification statute, which prohibited the use of sound amplification systems in motor vehicles that could be heard from a specified distance away from a vehicle and which contained an exception for vehicles engaged in advertising, was a content-based regulation of speech, in violation of the First Amendment."

"Turning our attention to the Florida statute at issue, on its face it is not content neutral. The statute excepts from its provisions "motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices." § 316.3045(3). In other words, an individual using a vehicle for business purposes could, for example, listen to political talk radio at a volume clearly audible from a quarter mile; however, an individual sitting in a personal vehicle that is parked next to the business vehicle is subject to a citation if the individual is listening to music or religious programming that is clearly audible at twenty-five feet. Clearly, different forms of speech receive different treatment under the Florida statute. That is, the statute in question does not "apply equally to music, political speech and advertising," which is what the Supreme Court requires in order for the statute to be deemed, "content-neutral." See City of Cincinnati, 507 U.S. at 428."

"Additionally, we conclude that the statute is a content-based restriction on free expression which violates the First Amendment."

Is the Law in your Traffic Case Valid? Call Me Toll Free to Discuss. 1-877-793-9290 .

Source: 36 Fla. L. Weekly D991a
Criminal Defense Attorney | Lawyer

Cell Phone Search Incident to Arrest

2011-05-06T12:29:00.000-05:00

Cell Phone Warrantless Search

Tampa Criminal Defense Attorney / Lawyer continues to follow recent developments in the search of cellular telephones / cell phones. One Florida court has just ruled in a 33 page opinion that pictures in a cell phone obtained from a suspect who had been arrested were inadmissible at trial since they had been seized during a warrantless search.

The court ruled:

"We are equally concerned that giving officers unbridled discretion to rummage through at will the entire contents of one’s cell phone, even where there is no basis for believing evidence of the crime of arrest will be found on the phone, creates a serious and recurring threat to the privacy of countless individuals. Were we free to do so, we would find, given the advancement of technology with regards to cell phones and other similar portable electronic devices, officers may only search cell phones incident to arrest if it is reasonable to believe evidence relevant to the crime of arrest might be found on the phone. Here, there was no evidence the officer had such a reasonable belief."

"Modern cell phones can contain as much memory as a personal computer and could conceivably contain the entirety of one’s personal photograph collection, home videos, music library, and reading library, as well as calendars, medical information, banking records, instant messaging, text messages, voicemail, call logs, and GPS history. Cell phones are also capable of accessing the internet and are, therefore, capable of accessing information beyond what is stored on the phone’s physical memory. For example, cell phones may also contain web browsing history, emails from work and personal accounts, and applications for accessing Facebook and other social networking sites. Essentially, cell phones can make the entirety of one’s personal life available for perusing by an officer every time someone is arrested for any offense."

"However, we express great concern in permitting the officer to search appellant’s cell phone here where there was no indication the officer had reason to believe the cell phone contained evidence."

The complete Cell Phone Search opinion is posted here for Free.

Cell Phone Search

Defense Attorney on Cell Phone Search | Evidence Suppressed

2011-04-27T21:44:00.004-05:00

Cell Phone Search Suppressed

Criminal Defense Attorney / Lawyer notes a recent Cell Phone Search ruling on a Motion to Suppress Evidence, filed pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure. Search and seizure law can apply to cell phones. Lately cops have been searching the phones and calling them a Search incident to arrest. Sometimes cops claim they need to search a phone for the safety of the officer. One court just ruled that a cell phone seized incident to defendant's arrest posed no risk to officer safety. The scope of a search has been limited, since a cellular telephone is not a container that could hold weapon. Sometimes police justify a search claiming that evidence will be destroyed. A court just ruled that once a phone was seized, there was no longer risk that defendant could destroy evidence in phone. The court concluded that a warrantless search of contents of cell phone was unlawful and a Motion to Suppress was granted.

Cell Phone Search Questions? Call Me Toll Free 1-877-793-9290.

Defense alleged an unlawful search of the Defendant's cellular telephone including: texts, pictures, the call history, and/or observations made by Officer. Testimony showed cop "found the Defendant's cell phone while searching his person at the scene, but then later examined the cell phone further at the police station while the Defendant was still being processed. Officer Clark testified that he found text messages regarding the sale of cocaine while he was looking through the Defendant's phone."

Court ruled, "When an officer arrests someone who has a cell phone in their possession, here may very well be reason to suspect that the phone contains valuable information, particularly in drug-related arrests. The call logs and address books could help link a defendant to a particular drug transaction and could provide the identities of other persons involved in the illegal activity; however, these are exactly the types of situations where probable cause could be used to obtain a warrant. The reality is that most information stored on a cell phone will remain there long enough for a warrant to be secured and that numbers “lost” from recent call lists are readily obtainable from the service provider. Cell phones are outside the ambit of the search incident to arrest exception's reach because of their capacity for storing vast quantities of intimately personal data. If courts continue to allow the unfettered exploration of this personal data, then courts are permitting the government to execute an unwarranted search of the cell phone user's life and habits. This intrusion cannot reasonably be justified by the rationales of officer safety and evidence preservation; therefore, a simple seizure of the cell phone must suffice until a warrant can be procured."

The Court's Ruling on the Cell Phone Search is Here.

Cell Phone Search Questions? Call Me Toll Free 1-877-793-9290.

Source: FLWSUPP 1805GLAS

Criminal Defense Attorney / Lawyer

How to Get Arrested for Racing | Use Baseball Diamond for Track

2011-04-25T08:59:00.000-05:00

Criminal Mischief Attorney

Defense Attorney and huge racer has been looking for opportunities in dirt track racing. Never thought of this - "motorcycles were observed by officers [on baseball diamond] . . . Officers were able to stop all of the motorcycles before the riders could flee. " So says the Tampa Tribune.

"There were no injuries, but both the infield and outfield were damaged and will require repairs before it can be used for play, according to the report."

If you have been charged with CRMS3000 CRIMINAL MISCHIEF $1000 OR MORE Call Me - Defense Attorney Tampa at 1-877-793-9290 and tell me your story.

Form Code: CRMS3000

Florida Statute: 806.13.1B3

Description: CRIMINAL MISCHIEF $1000 OR MORE

806.13 Criminal mischief; penalties; penalty for minor.

(1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.

3. If the damage is $1,000 or greater, or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Video | Open WiFi Port Gets A Visit From Feds

2011-04-24T23:29:00.002-05:00

Wi Fi Bust

Florida Computer Crime Defense Attorney / Lawyer notes a Florida guy got a visit from the Feds, after a long distance wireless antenna was used to access his network on the 12th Floor of a Tampa Bay area condominium. The guy the Feds eventually busted was on a boat in the bay and was eventually indicted.

This Tampa Bay story has become national news. Check out the video below.

Call me Toll Free 1-877-793-9290 if you or a loved one have questions.

Gun and Drug Evidence Suppressed

2011-04-18T23:20:00.000-05:00

Gun Suppressed

Tampa Defense Attorney recently studied a court ruling where a gun and drugs were thrown out after an illegal pat down was ruled a warrantless search. In this Tampa court, the trial judge ruled a Pat down search of a defendant was lawful. The Appeals panel ruled otherwise, finding the officers did not have reasonable suspicion that the defendant was armed with a dangerous weapon.

The defendant was walking along highway and did not comply with an officers' requests to keep his hands out of his pockets. That fact alone was not sufficient to establish reasonable suspicion. The cops saw no weapons and did not notice bulges in the defendant's clothing to indicate that he was carrying a weapon. Motion to suppress firearm and drugs discovered during pat down should have been granted.

Case Excerpt: "This case presents the issue of two conflicting interests: the Fourth Amendment right to be free from unreasonable searches and seizures and the ongoing concern for officer safety in an increasingly dangerous profession. But even though the facts of this case reveal an alarming result of the pat-down—a gun—we are not permitted to be distracted by the fruit of the search. Instead, our focus must be on the justification for the search. See D.B.P. v. State, 31 So. 3d 883, 887 (Fla. 5th DCA 2010) ("The success of the search . . . is not now and never has been the test to be applied.")"

. . .

"For a weapons pat-down search to be valid, an officer must identify objective facts indicating that the person detained is armed and dangerous. See Howell v. State, 725 So. 2d 429, 431 (Fla. 2d DCA 1999). But here, the only justification provided by the officers was the fact that Dawson refused to comply with their requests to keep his hands out of his pockets. That fact—standing alone—was insufficient to establish reasonable suspicion. The comment made by one officer that he believed Dawson "could have contraband or a weapon" was simply unsupported by any identifiable objective facts to lead him to that conclusion. Because "routine patdown searches based on general concern for officer safety are not constitutionally permitted," McNeil v. State, 995 So. 2d 525, 526 (Fla. 2d DCA 2008), the officers lacked reasonable suspicion to conduct a pat-down search of Dawson and the trial court erred by denying the suppression motion."

The Complete Pat Down Opinion is available for download here.

Source: 36 Fla. L. Weekly D804a

Epsilon Security Breach | Lawsuit?

2011-04-05T11:57:00.008-05:00

Florida Cyber Attorney / Lawyer has been reviewing claims of possible legal action to remedy the alleged epsilon security breach. Media reports state, "The online marketer Epsilon has told major companies that it inadvertently exposed tens of millions of their customers' names and emails in a giant security breach that could leave them vulnerable to phishing attacks. The marketer works with big banks, retailers and hotel chains."

The problem, according to one writer, is that "cyber criminals can now use those email lists to send phishing attacks — with personalized messages from brands that consumers do business with — that could be much more effective than random email spam." so says Venture Beat.

Here is the NPR Report and the Sample text of a warning received by one of my family-members.

One Attorney General has Posted:

"The list of affected businesses continues to grow, but currently includes the following:"

1-800-Flowers
AbeBooks
Ameriprise Financial
Barclays Bank of Delaware
Barclays L.L. Bean Visa
bebe
Benefit Cosmetics
Best Buy
Borders
Brookstone
Citi
College Board
Disney Destinations
Eileen Fisher
Ethan Allen
Fred Meyer (Kroger brands)
Hilton Hotels
Home Shopping Network
JPMorgan Chase
Lacoste
Marriot-Rewards
McKinsey Quarterly
New York & Company
Red Roof Inn
Ritz-Carlton Rewards
Target
TD Ameritrade
TiVo
U.S. Bank
Walgreens

Typical Warning Letter

To our valued guests,

XXX’s email service provider, Epsilon, recently informed us that their data system was exposed to unauthorized entry. As a result, your email address may have been accessed by an unauthorized party. Epsilon took immediate action to close the vulnerability and notified law enforcement.

While no personally identifiable information, such as names and credit card information, was involved, we felt it was important to let you know that your email may have been compromised. Target would never ask for personal or financial information through email.

Consider these tips to help protect your personal information online:

Don’t provide sensitive information through email. Regular email is not a secure method to transmit personal information.

Don’t provide sensitive information outside of a secure website. Legitimate companies will not attempt to collect personal information outside a secure website. If you are concerned, contact the organization represented in the email.

Don’t open emails from senders you don’t know.

We sincerely regret that this incident occurred. XXX takes information protection very seriously and will continue to work to ensure that all appropriate measures are taken to protect personal information.

Please contact Guest.Relations@XXX.com should you have any additional questions.

Sincerely,

XXX YYY
Vice President, Marketing and Guest Engagement

Sources:

Warning Letter Sent by Large Retailer
http://www.ag.idaho.gov/media/consumerAlerts/2011/ca_04052011.html

http://venturebeat.com/2011/04/04/how-many-times-did-epsilon-lose-your-personal-email-data/

Jury Selection | Juror Questionnaires | Barry Bonds

2011-03-30T14:56:00.000-05:00

Juror Questionnaires

Defense Attorneys who go to trial would like to know more about those who are seated on a jury in their client's trials. In a jury trial dozens of people are called by the court and interviewed by the lawyers and in some case, by the judge. Some trial courts allow for written questions to be answered by potential jurors to aid in the selection process. I have spent some time reviewing a juror questionnaire in a high profile trial in federal court and listed a few questions below. Our readers can view a recent Federal Juror Questionnaire here. We have also posted a Juror Questionnaire used in an entertainment personality's trial here.

Since a jury decision should be based upon the evidence in court, trial lawyers want to know if prospective jurors have been following a case in the media. Now that means television, radio, newspapers, and the internet.

31. How often do you use the Internet?

( ) Never ( ) A little ( ) Sometimes ( ) A lot ( ) Every day

What sort of things do you use the Internet for?

What sort of information do you obtain from the Internet?

Which web sites do you visit regularly?

32. Do you like to "blog" or read blogs on the Internet? ( ) Yes ( ) No

IF YES, which blogs do you visit?

33. Do write your own blog or post comments on other blogs? ( ) Yes ( ) No

IF YES, what is the name of your blog or what blogs do you post comments to?

47. Reports about this case have appeared in the news. Have you seen, heard or read anything about this case? (This includes not only anything you may have seen or read in the media, but also anything you might have heard from relatives, friends or coworkers.)

( ) Yes ( ) No

IF YES, please indicate where you heard or read about this case by checking all that apply:

( ) TV News ( ) Radio News ( ) Newspaper ( ) Magazines ( ) Books, including “Game of Shadows”( ) Internet ( ) On-Line ( ) Conversations ( ) Overheard others discussing the case

Will there be a Jury Selected in Your Case? Call for a Free Telephone Consultation 1-877-793-9290.

Tuesday Oral Argument at Supreme Court | Live Updates Here

2011-03-27T20:27:00.002-05:00

Appellate Lawyer Ken Siegel at Supreme Court

Tuesday March 29, 2011 Ken Siegel, Counsel of record in the United States Supreme Court, will be in the courtroom of our Highest Court appearing on behalf of a Mr. Fowler, convicted in Federal Court for silencing a witness who it was alleged was going to tell federal Officials about crimes. For the Tuesday Oral Argument at the United States Supreme Court there will be Live Updates Here . Good Luck to our friends, Tampa Appeal Attorney / Lawyer Ken Siegel and Steve Crawford.

As one blog put it:

"Issue: Whether a defendant can be convicted of murder under 18 U.S.C. § 1512(a)(1)(C), which is part of the federal witness-tampering statute, without proof that information regarding a possible federal crime would have been transferred from the victim to federal law enforcement officers or judges." The Scotus Blog then restated the question as follows:

"Plain English Issue: Whether, to prove a criminal violation of the federal witness tampering statute when a defendant allegedly kills a witness, the government must prove that the victim would have provided information regarding a crime to a court or law enforcement."

Source: http://www.scotusblog.com/case-files/cases/fowler-v-united-states

Spring Break High Tech Mobile Arrest | Florida Update

2011-03-06T12:47:00.003-05:00

Cops and Businesses Monitor Visitors

Spring Break Update | Criminal Defense Expert, notes that some police agencies are employing mobile 3G and WiFi ID Card Scanners, and a non-discretionary "zero tolerance" policy to encountering and arresting Spring Break visitors. Police are using fairly vague and discretionary charges, such as Disorderly Conduct Florida Statute 877.03. These seemingly minor charges can result in a permanent criminal record. See details about this charge below.

Also we note that one restaurant on a beach has over a dozen security cameras monitoring the activities of beach-goers. One media outlet predicted, "more than 2 million students will be on break." BayNews9.com . With the foolishness of zero-tolerance policies we expect Florida Courts and jails to be packed. Casey frequently represents out-of-state visitors charged with offenses while on vacation.

For Help Call 1-877-793-9290

Security Cameras

One small Florida police department has even installed a couple of cameras mounted on utility poles to monitor beach visitors. Expect that law enforcement will also be using readily available portable card scanners that will retrieve age information from the back of Florida (and possibly other) state driver's licenses.

Back of Florida License

According to official sources with the State of Florida, "The (Florida License and ID Cards) cards are created using a new, updated digital imaging process. This process stores all the information from the front of the card in a 2-D barcode and magnetic stripe located on the back (see photo to your left). Driver license class, restrictions, conditions, and endorsements specific to the driver are printed on the back." DHSMV Official Site.

For Help Call 1-877-793-9290

Disorderly Conduct | Summary of Charge

Florida Statute: 877.03
Level: 2nd Degree Misdemeanor

Breach of the peace; disorderly conduct.

Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

For Help Call 1-877-793-9290

Underage Drinking | Open Container | Summary of the Charges

Many Florida Communities have very stringent Open Container Laws that prohibit possession of open containers away from licensed facilities (Bars) and particularly on some beaches. Below are details of one such ordinance.

Sample Open Container Ordinance

Tampa Open Container Ordinance Sec. 3-40. - Consumption and possession of open containers on streets, sidewalks, alleys and other public property.

(a)It is unlawful for any person to consume, assist or aid another to consume any alcoholic beverage upon any street, sidewalk, alley or other public property within the city.

(b)It is unlawful for any person to possess an open container of an alcoholic beverage upon any street, sidewalk, alley or other public property, including public or semi-public parking lots, within the city.

(1)As used in subsection (b), "open container" means any vessel or container containing an alcoholic beverage, including beer or wine, which is immediately capable of consumption or the seal of which has been broken.

(2)An open container shall be considered to be in the possession of the person if the container is in the physical control of such person.

(c)Subsections (a) and (b) do not apply when:

(1)The street, connecting sidewalk or alley has been officially temporarily closed upon application to the director of public works and the approval of the city council for the purpose of a block party as provided in this Code; or

(2)A portion of a sidewalk has been leased and permitted as a sidewalk café as provided for in chapter 22 of this Code; or

(3)Public property has been zoned and permitted for the sale of alcoholic beverages pursuant to law; or

(4)A portion of the street, connecting sidewalk or alley has been marked and/or designated as a crossing for a public golf course.

For Help Call 1-877-793-9290

Florida Underage Drinking Statute

562.111 Possession of alcoholic beverages by persons under age 21 prohibited.

(1) It is unlawful for any person under the age of 21 years, except a person employed under the provisions of s. 562.13 acting in the scope of her or his employment, to have in her or his possession alcoholic beverages, except that nothing contained in this subsection shall preclude the employment of any person 18 years of age or older in the sale, preparation, or service of alcoholic beverages in licensed premises in any establishment licensed by the Division of Alcoholic Beverages and Tobacco or the Division of Hotels and Restaurants. Notwithstanding the provisions of s. 562.45, any person under the age of 21 who is convicted of a violation of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; however, any person under the age of 21 who has been convicted of a violation of this subsection and who is thereafter convicted of a further violation of this subsection is, upon conviction of the further offense, guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) The prohibition in this section against the possession of alcoholic beverages does not apply to the tasting of alcoholic beverages by a student who is at least 18 years of age, who is tasting the alcoholic beverages as part of the student’s required curriculum at a postsecondary educational institution that is institutionally accredited by an agency recognized by the United States Department of Education and that is licensed or exempt from licensure pursuant to the provisions of chapter 1005 or is a public postsecondary education institution; if the student is enrolled in the college and is tasting the alcoholic beverages only for instructional purposes during classes that are part of such a curriculum; if the student is allowed only to taste, but not consume or imbibe, the alcoholic beverages; and if the alcoholic beverages at all times remain in the possession and control of authorized instructional personnel of the college who are 21 years of age or older.

(3) In addition to any other penalty imposed for a violation of subsection (1), the court shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of, or suspend or revoke, the violator’s driver’s license or driving privilege, as provided in s. 322.056.

For Help Call 1-877-793-9290

Source: http://www.baynews9.com/article/news/2011/march/215091/Police-cracking-down-during-spring-break
http://www.flhsmv.gov/ddl/newformat.html

10 Day Treatment Track | Minimum Mandatory Jail

2011-02-04T23:48:00.000-05:00

Treatment

Tampa Criminal Defense Attorney has noted a recent trend in Treatment alternatives to Jail. Casey Ebsary is a former Drug Court Prosecutor with experience in Court with persons facing jail from substance abuse-related incidents. Treatment is focused on legal problems due to alcohol and drug use and may be facing a 10-day jail sentence for DUI (10-Day DUI Treatment Track) .Daily attendance of AA/NA meetings is required. There is a preadmission medical assessment that must be completed a week before entering the center. The cost is $4,000.00.

The 10-Day Driver Intervention Program offers programming in a minimum-security jail environment. It is designed for male and female second-time DUI offenders to provide services aimed at reducing the likelihood of future driving under the inﬂ uence of alcohol or drugs. Services provided are assessment, alcohol and drug education, counseling and referral.

Minimum DUI Jail Sentence? Call Me Toll Free 1-877-793-9290.

10 Day Minimum Mandatory Jail | Treatment Track

Video Tampa Prescription Drug Roundup | Breaking News

2011-02-03T11:29:00.001-05:00

Oxycontin

Tampa Prescription Drug Defense Lawyer just received a report of yet another Prescription Drug roundup as HCSO Hillsborough County Sheriff's Deputies deputies made 33 arrests for dealing prescription medications. Code Name: Operation Pain Reliever .

Former Drug Court Prosecutor W.F. “Casey” Ebsary, Jr. is now available to help both the accused and their family members with all types of drug charges. Casey can help with oxycodone, morphine, methadone, amphetamines, hydrocodone, xanax, and other types of prescription medication legal problems.

Need Relief? Call me Toll Free 1-877-793-9290.

Source: http://www.tampabay.com/news/publicsafety/crime/as-bondi-announces-crackdown-on-prescription-meds-33-arrested-in/1149356

Hillsborough Prescription Drug Busts | Operation Pain Reliever | Prescription Drug Defense Lawyer

Tampa Police Arrest 2011 Gasparilla Video

2011-01-30T20:56:00.002-05:00

Tampa Criminal Defense Attorney / Lawyer, Casey Ebsary, found this internet Video produced by the Tampa Police Department. We have been working through the night helping those who were charged at this year's Gasparilla Pirate Fest in Tampa, Florida near Bayshore Boulevard..

Call Me Toll Free at 1-877-793-9290.

Gasparilla Arrest Video, Tampa Police, Open Container, Possession of Alcohol

Gasparilla Arrest Report Update | 359 Arrests

2011-01-29T18:21:00.002-05:00

Gasparilla Arrest Report Update: "Tampa police reported 349 arrests, most for alcohol violations and all but three misdemeanors. The felonies were charges for grand theft auto, resisting arrest with violence and battery on a law enforcement officer. Hillsborough County deputies made an additional 10 arrests on disorderly conduct or open container charges."

Original Report Gasparilla Arrest; 222 Arrests

Source: http://www.tampabay.com/news/bigger-crowds-fewer-arrests-and-a-continuing-clamor-for-beads-mark/1148560