Search results: entrapment

Internet Sex Crime – Pre-file

August 13th, 2012


Internet Sex Offenses in Florida

An online prostitution investigation was conducted by the Polk County Sheriff’s Department undercover detectives from August 24, 2012 through August 30, 2012, resulting in 89 suspects being arrested, including the principal of Kathleen High School, Cecil Edward McClellan. According to police, McClellan agreed to pay undercover detective money in exchange for sex. He was subsequently arrested when he arrived at the hotel wearing a Kathleen High School football shirt. Another suspected arrested in the case was 39 year old Glen Kershaw from  Orlando, Florida who was charged with traveling to meet a minor for sex, attempted sexual battery on a minor under 12, use of computer to entice a guardian, and unlawful use of two-way communication.

The remaining suspects were charged with crimes ranging from solicitation of prostitution, offering to commit prostitution, deriving proceeds from prostitution, aiding and abetting prostitution traveling to meet a minor for sex, drug charges and battery on a law enforcement officer.

Sheriff Grady Judd was quoted as saying “Prostitution is illegal and those who commit or who derive proceeds from this crime in Polk County can expect to go to jail. The negative social costs of prostitution hurt families, children and communities. Whether it is on the street, or online, it is illegal and we will continue to investigate and arrest those involved in prostitution.”


What is a Prefile Internet Sex Case?

A prefile case occurs when someone is under investigation for an Internet sex crime, but has not been arrested or charged yet. Even if you are not guilty of committing the crime, you still could be considered a lead suspect or person of interest.  It is important to seek legal advice from a Florida criminal defense attorney during the investigation to help avoid prosecutors from charging you with an Internet sex offense.  The attorney will talk to the prosecutor to find out what evidence they have against you and help clear up any misunderstandings or false accusations and also make sure that police are not planning on engaging in any kind of entrapment tactics against you.


Charges and Penalties

Facing charges for an Internet sex crime in Florida is serious, especially when a minor is involved.  Internet sex crimes may include the following types of crimes:

  • Possession or distribution of Internet child pornography
  • Online solicitation of a minor for sex whether consensual or not
  • Luring of a minor in a chat room
  • Conducting an online escort/prostitution service
  • Sending or receiving nude photos by teenagers using a cell phone



Third degree felony for downloading child pornography or a first degree felony for producing or promoting child pornography.

Solicitation of a minor in a chat room -a  minimum 21 month to a maximum 5 year prison sentence, a fine up to $5,000 and 5 years of sex offender probation if convicted.

Second degree felony if over the age of 18 or a third degree felony if under the age of 18 for lewd conduct for exposing yourself on the Internet with no physical contact with the victim.

Prison sentences between 5 and 13 years and fines up to $5,000, sex offender probation and registration as a sex offender for life.  A conviction could also mean that it may be difficult for you to find a job or place to live.


Hiring a Florida Criminal Defense Attorney

If you are being investigated or considered a suspect in a pre-file Internet sex case, or you have been charged with an Internet sex offense in Florida, you should hire a Florida criminal defense attorney immediately. Imhoff & Associates –Criminal Attorneys understand how serious being accused of an Internet sex crime can be, and we will use all resources available to try and get the prefile investigation closed. If charges have already been filed against you, we will raise strong affirmative defenses such as entrapment, mistaken identity or that you had no intention of engaging in sex in order to get the charges reduced, get your probation, community service or get your case dismissed.

Parents Involved in Pre-School Brawl

June 21st, 2012

Supreme Court Decision - Juvenile Life SentencesParents Involved in Pre-School Brawl

On June 7, 2012, at approximately 9:30 a.m., a fist fighting broke out at Lenicia B. Weemes Elementary School located at 1260 W. 36th Place, Room K-3, Los Angeles, 90007 between parents of pre-school children during their children’s graduation ceremony, while terrified children watched in the background. The incident can be traced to budget cuts resulting in approximately 30 children having to share one caps and gowns, one set for the boys and one set for the girls, during graduation pictures.


According to witnesses, a room was filled with approximately 35-50 people, including parents, children and teachers, when a fight began between two mothers, after one mother (victim #3) accused the other mother of taking too long with a graduation gown. Parents became frustrated and several parents starting punching with their fists, pulling hair and a chair was allegedly thrown at victim (#3), who also reported her keys and purse missing. She later identified suspects #1-#4, stating that suspect #1 punched her, threw her on the ground and threw a chair at her. She accused suspect #2 of throwing a table at her and pulling her purse off her shoulder, accused suspect #3 of pushing her mother and accused suspect #4 by stating that,… “she did everything.”

Although there was some confusion between two suspects who were both identified as suspect #1, one of which was charged with robbery, but not named as a defendant on any felony complaint, and another who was also charged with robbery and named as a defendant on the felony complaint. However, later the first suspect #1 admitted that she accidently took the purse.

Suspect #2 was charged under California Penal Code Section 245(a)(1) with assault with a deadly weapon, which carries a sentence of 2-4 years in a California state prison, if convicted. Her charges were dismissed at the preliminary hearing.

Another victim (#1) said her phone was stolen as she came out of the rest room. The school reported that one victim sustained a cut lip, although it was not clear which victim. Victim #2, the mother of victim #3, said her purse was taken, but it was discovered later on the grass across the street from the school with any its contents accounted for. Victim #2 was treated by paramedics for anxiety and elevated blood pressure.

A witness who arrived late to the graduation took a video of the brawl with his cell phone, which later went viral over the world wide web. From the video, it was hard to determine who did what. None of the charges could be proved at the preliminary hearing. After reviewing the video approximately 10 times, Judge Bianco did not hold the defendants to answer.

While this may be an unusual incident, it does demonstrate how social economic impacts such as budget cuts at an inner city pre-school can turn a joyous graduation celebration into an emotional and heated argument resulting in an unfortunate situation where people can get hurt.

If you are facing a felony charge of assault with a deadly weapon or a robbery charge in California, you should hire a California criminal defense attorney to defend you. For a conviction of assault with a deadly weapon, you could face prison time of from 2-4 years and fines up to $10,000. Under Section 245 (a) (1), a deadly weapon is considered any object, other than a gun, that is “capable of producing and likely to produce death or great bodily injury, that is not part of your body, including a knife,  pencil or even a motor vehicle. Use of a gun enhances the penalties to Assault with a Firearm under Penal Code 244, and you can face a $10,000 fine and a four year state prison sentence. The attorney can argue self-defense, defense of property or defense of others, no credible threat, false accusations, the victim consented to the assault, or insufficient evidence.

If convicted of robbery under California Penal Sections 211-215, you could face up to 3, 6 or 9 years in state prison for first degree robbery. For a conviction of robbery in the second degree, you could get a sentence up to 2 to 5 years in state prison. The attorney can argue insufficient evidence, another person pushed you into committing the crime under duress or entrapment.

When you are represented by an experienced California criminal defense attorney, your attorney will vigorously defend you to get your charges reduced to a lesser crime, community service, probation or get the charges dropped.

223 Arrested In National Day of Johns Arrests, An Effort To Stop Human Trafficking

October 27th, 2011

In 2005, Illinois passed one of the nation’s strictest laws on human trafficking which  involve offenses of involuntary servitude, sexual servitude of a minor or forced labor of persons for services. Charges range from a Class 4 to a Class X felony if kidnapping or injury to the victim is involved. If convicted, you may face severe penalties of heavy fines, jail time, a permanent criminal record and possibility of having to register as a sex offender, as well as having to pay restitution to the victim for their forced labor. The Illinois laws protect the victims of human trafficking and prostitution by providing social services under both Federal and State programs and immigration assistance.

Also, in 2010, the Governor Pat Quinn signed into law the Illinois Safe Children Act which protects minors forced into sex and ensures that children are immune from criminal prosecution and instead are placed in the child protection system. Human trafficking crimes are also illegal under federal law, Title 18, Chapter 77 and the Mann Act 18 U.S.C.A. § 2421 [as amended 1986], making it a crime to transport a person over interstate lines or for foreign commerce for the purpose of prostitution or other immoral acts.

Prostitution, pimping, pandering and solicitation of prostitution are also illegal under the following Illinois laws listed below. You can be found guilty of crimes ranging from  Class A misdemeanor to a Class 4 felony which carry sentences Prostitution; pandering, pimping and solicitation charges carry sentences of up to 1 yr and/or $2,500 then 1-3 yrs and/or $25,000. Law enforcement may impound any vehicle used by the person in the commission of the offense.

720 ILCS 5 Sec. 11 14.1 solicitation of a sexual act is considered a Class B misdemeanor offense.

720 ILCS 5 Sec. 11 15 solicitation for a prostitute offense is considered a Class A misdemeanor.

720 ILCS 5 Sec. 11 16 pandering by compelling a person to become a prostitute and receiving compensation or arranging for the situation is a Class 4 felony and a Class 3 felony if the violation takes place within 1,000 feet of a school.

720 ILCS 5 Sec. 11 17 keeping a place of prostitution is a Class 4 felony.

720 ILCS 5 Sec. 11 18 patronizing a prostitute is a Class A misdemeanor.
720 ILCS 5 Sec. 11 19 pimping by receiving any article of value from a prostitution earned in part from act of prostitution is a Class 4 Felony and a Class 3 felony if the violation takes place within 1,000 feet of a school.

Case Example

The Cook County Sheriff’s Office’s pilot program announced that their Columbus Day weekend joint eight law enforcement agency sweep of “Johns” called “National Day of Johns Arrests” resulted in sting activities and arrests on the streets, hotels, brothels, the Internet and other places which were concluded on Monday morning October 10, 2011. Among those agencies that participated were:

Cook County Sheriff Police Department (Illinois)
Aurora Police Department (Illinois)
Cincinnati Police Department (Ohio)
Elgin Police Department (Illinois)
Las Vegas Police Department (Nevada)
Los Angeles Police Department (California)
Phoenix Police Department (Arizona)
Newport News Police Department (Virginia)

There were a total of 247 charges with the arrest of 216 Johns, a total of 223 arrests, fines totaling $238,490, 71 vehicles that were towed, 2 pimp arrests, 8 drug arrests. The majority of arrests took place on the street and in hotels. A grant from Demand Abolition supports Illinois public awareness programs to deter offenders from participating in commercial prostitution and/or human trafficking by offering eligible defendants an opportunity to participate in the law enforcement agency’s pilot program “John Schools.” Other voluntary and involuntary programs are also offered to rehabilitate offenders.

Victims of prostitution and human trafficking are offered social services and safe housing to allow them to leave their lifestyle of prostitution.  The success of the law enforcement agency’s pilot program is expected to lead to future collaboration John sweeps across the nation in the fight of solicitation of sex and related crimes.  Next year, under Illinois Senate Bill 1037, sponsored by Senator Toi Hutchinson (D-Chicago Heights) and Rep Karen Yarbrough (D-Maywood), defendants of human trafficking at the time of their prostitution convictions will be able to file a motion to vacate the conviction if they can prove their participation was because they were a victim.

Criminal Defense Attorney

If you are arrested of a prostitution or human trafficking crime in Illinois, it is important to understand your rights. Since these are serious crimes, it is recommended that you hire an Illinois Criminal Defense attorney to defend you. The attorney understands that arrests for prostitution, pandering, solicitation and related human trafficking crimes many times involve entrapment, violation of privacy and are discriminatory resulting in false charges and individual rights being violated. Other factors to be considered are whether a human trafficking offense occurred as a result of fear or abuse. The attorney will defend your rights to try get your charges reduced, community service, a voluntary or mandatory John educational or other community program, probation or get your case dropped.

How a California Criminal Attorney Is Able To Defend Against Drug Fraud

January 29th, 2011

The misuse of taking or prescribing a controlled substance through misrepresentation, fraud, deceit, forgery or burglary is a crime of prescription drug fraud under California Health and Safety Code Sections 11172 through 11175, 11153 through 11157 or 11368. Often persons with drug addictions may be involved in prescription drug fraud by either purchasing or obtaining a controlled substance such as Vicodin, Oxycontin, Hydrocodone, Methadone, Percodan, Ritalin and Xanax in an illegal manner in order to make money or for their own use. For instance, stealing your doctor’s prescription pad and forging your doctor’s signature in order to authorize a prescription, adjusting your doctor’s prescription by changing the quantity or dosage of the prescription, using a computer to create a false prescription or doctor shopping by using multiple doctors and pharmacies to obtain prescriptions of the same drug without each doctor’s and/or pharmacy’s knowledge are all examples of crimes of prescription drug fraud. Doctors who commit prescription drug fraud by writing prescriptions for medical purposes that are not considered legitimate or treating an addict outside professional treatment may lose their licenses, have to pay large fines and face jail time if they are convicted of prescription drug fraud.
Penalties and Fines
Prescription drug fraud may be prosecuted as either a misdemeanor or a felony offense in California, and the penalties may include state prison or county jail time, probation, fines, community service, drug counseling or rehabilitation.  Doctors that are convicted of prescription drug fraud under Health and Safety Code Sections 11153 and 11154 face losing their licenses, prison time in state prison up to three years or county jail up to one year and fines not exceeding $20,000. Persons convicted under Section 11173 of doctor shopping face jail time in the county jail up to one year or up to three years in a California state prison.

Case Examples

Case 1
According to an amended accusation filed on December 21, 2010, by the Medical Board of California, Yuba City physician Jeffrey Lawrence Phillips of North Valley Neurological Associates, 1215 Plumas St., allegedly prescribed Abien, Restoril and Naxanx for himself by using another doctor’s name. Dr. Phillips had been convicted in a Sacramento County Superior Court and sentenced to five years probation, including jail time, for Medicare and Medi-cal fraud in August 2008. At that time, he agreed to pay approximately $83,000 in restitution. During 2006 and 2008 while working for nursing homes, Phillips submitted false claims for payment and signed patients’ progress reports for patients who had died or had been discharged according to the Board’s documents. A hearing is scheduled on March 1, 2011 regarding his medical license. Dr. Phillips also provides medical marijuana evaluations under the name North Valley Wellness Center which shares the same address as the North Valley Neurological Associates. Dr. Phillips refused to talk about the allegations when asked on January 6, 2011.

In September 2009, Dr. Phillips told a Board investigator that his neighbor, physician Richard Joseph Brouette, occasionally prescribed medications for him. Dr. Brouette told investigators that he only prescribed a refill for Ambien one time, and that Phillips only became a patient in July 2010. During the time period March 2005 and January of 2010, Phillips allegedly improperly obtained 1,340 tablets of Ambien. At an evaluation in October, Phillips made false statements to a psychiatrist stating that he never used another physician’s name to authorize prescription medicine refills without that physician’s knowledge.

Case 2
Parents, teachers and law enforcement officers in Santa Monica, CA are concerned about the 35 drug arrests made so far during January 2011 at Santa Monica High. The number is 17 more than the all of 2010. The majority of the arrests have been for illegal prescription drug use. Officials reported that the arrests involved students of different ages, races and ethnic backgrounds, and officials have no explanation for the increase in illegal prescription drug use. The school is focusing on educating parents to keep their medications away from their children and how to recognize the signs of drug abuse.  A parent whose 14 year old daughter was arrested for taking Ecstasy suggested that the school bring in drug sniffing dogs to find the students who are selling and using drugs, but school board member Oscar de la Torre is against this practice.

If you have been arrested of a prescription drug fraud offense, you should hire a California criminal defense attorney to defend you. The attorney may be able to get your charges reduced, especially if there was entrapment involved, get the case dismissed or have your sentence reduced to rehabilitation, probation or community service.

Solicitation of Prostitution Solicitation, Prostitution, Pimping and Pandering

July 29th, 2005

By Vince Imhoff, Esq. & Dan Rhoads

In 1993, an undercover Beverly Hills police officer posing as a wealthy Japanese businessman contacted Heidi Fleiss. He offered to pay $6,000 so that Fleiss would send four women to meet him and some colleagues at a hotel. In June, Fleiss sent the women to the Beverly Hills Hilton, where the men had a room. The undercover agents posed as clients and specifically asked for sex.

Once the women agreed, other agents stormed in from the adjacent room and arrested the women, whose actions the police had recorded. The next day, Fleiss was arrested and charged with, among other things, five counts of pandering. She pled not guilty to all counts but was indicted. At trial, Fleiss raised a defense of entrapment; and the jury was split. In a compromise, the jurors voted to convict Fleiss for three of the pandering counts. The judge sentenced her to three years in prison and a fine of $1,500.

What is pandering?

In California, pandering is a felony punishable by three, four, or six years in the state prison. Cal. Penal Code 266i(a). The most basic pandering offense is “procur[ing] another person for the purpose of prostitution.” 266i(a)(1). The statute also prohibits causing, inducing, persuading, or encouraging others through promises, threats, violence, or any scheme to become involved in prostitution. 266i(a)(2)-(6).

Pandering versus Pimping

A person who arranges a meeting between a prostitute and a john and who takes a cut of the prostitute’s revenue can be charged with both pimping and pandering. In California, pimping means knowingly receiving compensation from another’s prostitution. The California law describes pimping in two ways.

First, “[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person . . . is guilty of pimping.” Cal. Penal Code 266h(a). So, a person who makes any part of his or her living through revenues generated by prostitution is a pimp in violation of the law.

Second, any person “who solicits or receives compensation for soliciting for the person is guilty of pimping.” Id. This section means that a person who works to find clients for prostitutes is illegally pimping.

Sex in the Champagne Room?

In the 1990s, Steve Kaplan’s Gold Club in Atlanta was the most illustrious gentlemen’s club in the country. Kaplan cultivated the club’s allure by establishing a client base full of superstar athletes, like former basketball players Patrick Ewing and Dennis Rodman and baseball player Andruw Jones. Kaplan sought the loyalty of those athletes by arranging sex between them and the club’s dancers.

In 2001, federal prosecutors charged Kaplan and many of his accomplices, including dancer Jacklyn Bush, with violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act. Included in the predicate offenses were violations of most of Georgia’s anti-prostitution statutes.

One story about Kaplan’s business methods involves Rodman. A former dancer, Amanda Pappas, testified that she was paid $500 to have sex with Rodman and Bush. A limousine took the retired athlete and the two dancers to his hotel and later returned them to the club. Rodman paid Pappas in the club’s “gold bucks,” which Bush exchanged for cash.

The club’s operations, including soirees like the one with Rodman, implicated both Bush and Kaplan in various crimes. By performing a sexual act for money or other items of value, Bush committed prostitution under Georgia law. Ga. Code 16-6-9. Kaplan was guilty of keeping a place of prostitution because he exercised control over the club, which offered seclusion or shelter for the practice of prostitution. 16-6-10. By gaining the patronage of famous athletes, which raised the profile of the Gold Club, Kaplan knowingly received a thing of value from a prostitute, “without lawful consideration, knowing it was earned in whole or in part from prostitution,” in violation of Georgia’s pimping law. Ga. Code 16-6-11. Kaplan was also guilty of pandering.

Contact with the Customer

Managers at a California gentlemen’s club fared better than Kaplan when a court decided that no prostitution was involved in their business. Brent Wooten, a manager at the Flesh Club, was charged with pimping and pandering after undercover officers paid to watch two of the club’s strippers perform sex acts on each other. The charges were dropped when the court found that no prostitution had occurred.

The case turned on two definitions. First was the definition of ‘prostitution’ as including “any lewd act between persons for money or other consideration.” Cal. Penal Code 647(b). Then, based on case precedent, the court held that, “a lewd act, an element of prostitution, requires touching between the prostitute and the customer, even if the customer is simply an observer of sexual acts between two prostitutes.” Wooten v. Superior Court, 93 Cal. App. 4th 422, 431 (4th Dist. 2001). The court concluded that, “because there were no lewd acts, i.e. no touching between the dancers and the customers, the conduct alleged herein failed to constitute ‘prostitution.'” Wooten, 93 Cal. App. 4th at 436.

The prosecution answered that one of the dancers had offered to perform a sex act on one of the officers. The court agreed that such an offer, if true, would constitute prostitution; but the defendants/club managers were charged with pimping and pandering. The court ruled, “that offerstanding aloneis insufficient to support a charge of pimping or pandering because there was no evidence that defendants knew that [the dancer] had made such an offer.” Wooten, 93 Cal. App. 4th at 438.

In a nod to strip clubs, the legislature added a provision stating that committing prostitution “does not include sexual conduct engaged in as part of any stage performance, play, or other entertainment open to the public.” Cal. Penal Code 653.20(a).


Solicitation originally meant an offer of sexual services by a prostitute. However, modern courts have held that “a statute making it an offense to solicit an act of prostitution is equally applicable to a man soliciting a prostitute as to the prostitute herself.” 63 Am. Jur. 2d Prostitution 9.

Some statutes clearly state which behavior they prohibit. On the eve of Super Bowl XXXIII, Falcons safety Eugene Robinson drove to Key Biscayne and offered an undercover officer $40 for oral sex. Under Florida law, Robinson was guilty of an attempt “to purchase the services of any person engaged in prostitution.” Fla. Stat. 796.07(2)(i).

California has a blanket solicitation statute, which applies both to prostitutes and their clients. Reyes v. Municipal Court, 117 Cal. App. 3d 771 (2nd Dist. Year). The misdemeanor of solicitation has three elements. First, a person must have specific intent to engage in an act of prostitution. Second, the person must “manifes[t] an acceptance of an offer or solicitation to so engage.” Cal. Penal Code 647(b). Finally, some act must be done “in furtherance of the commission of an act of prostitution.” Id.

Act in Furtherance of Prostitution

When a statute requires an act in furtherance, the corroborative act can become an issue to dispute at trial. Most courts agree that, “the clarifying or corroborative act need not occur after the agreement was made.” In re Cheri T., 70 Cal. App. 4th 1400 (2nd Dist. 1999). Merely getting into a car before an offer is made is not an act in furtherance, but telling a driver to drive to a dark place is. Id. A masseuse who quotes prices for sex acts during a massage, but leaves on her clothes and does not actually perform any sexual acts, has not done an act in furtherance of prostitution. Adams v. Commonwealth, 208 S.E.2d 742 (Va. 1974).

Effects of Prostitution Charges

Prostitution and solicitation are misdemeanors, but pimping and pandering are felonies. If a minor under 16 is involved in the offense, the defendant might have to register as a sex offender.

A person who wants to fight prostitution charges needs a dedicated criminal defense attorney who will make the prosecution prove all the elements of the crime charged. The worst effect of a conviction on a prostitution charge is usually the stain of such a lurid offense on a person’s criminal record.

Child Pornography: Internet Mis-haps

April 12th, 2005

By Vince Imhoff, Esq. and Ori Blumenfeld

Child pornography, has become more prevalent and widespread in the past five years than ever before. With the emergence and explosion of the cyber-world and the rise in the use and the accessibility of the Internet, those who have a desire to view child pornography have easy access to do so. Even though various companies that provide Internet access go to great lengths in effort to remove such pornographic sites, often times it is to no avail. The prevalence of uncontrollable pop-up sites containing these disturbing images has thwarted this effort to control pornography, thus giving those who choose to view these sites, easy access to do so.

Opening Child Pornography Email

Suppose a child pornography email is sent to an account holders junk mail folder. Now, suppose that the person who received pornographic email mistakenly opens it, and in attempts to delete it, a common human error made by many known as a mis-click. Once this email is mistakenly opened, a message appears on the account holders computer screen, and in the body of the email, stating, THIS IS AN FBI STING OPERATION AND YOU HAVE BEEN CAUGHT ATTEMPTING TO VIEW CHILD PORNOGRAPHY YOU WILL BE CONTACTED SHORTLY BY A FBI AGENT.

If the email account holder can show that their inadvertent action caused them to open the child pornography email, rather than their subjective intent to do so, then they should be able to use this fact as part of their defense if charged with a crime relating to this action. More specifically, the email account holder should show that they did not have the requisite mens rea, or state of mind, to be charged with a crime relating to the viewing of child pornography. The email account holder should prove that they neither requested nor purchased the email containing the pornographic images that were sent to them and thus should not be charged with a crime.

In addition to using the fact that the email account holder lacked the requisite subjective intent needed to be charged with a child pornography offense as part of their defense, the holder of the account can raise yet another complete defense to lack of required elements; namely lack of possession. More specifically, when someone receives an email but does not open it, other issues arise: – Does this mean that they have acquired possession of the email and its contents? – Is possession established only if the email is opened and/or read and internalized? – At a more extreme level, does possession of an email begin at the moment it is sent from one party to another; the action of sending the email creating automatic possession of the email by the party receiving it? – Between the time sent and the time received, who is in fact in possession of the email? – Is knowledge of the contents of an email established once the email is received by the email account holder, or is knowledge established when the email account holder engages in the volitional act of opening the email and viewing its contents? – What is the status of an email account holder who has received an email that has a subject line referring to child pornography, but has not yet opened the email? – Can you equate such receipt of pornographic material with possession of pornographic material?

Determining Possession of Child Pornography

Before one may be charged with possession of child pornography, the issue of what it means to be in possession of, along with the listed issues need to be determined. For the sake of the hypothetical at hand, there is a presumption that the owner of the email was not in actual possession of the child pornography, due to the inadvertent opening of the pornographic email. Various federal statutes state that in addition to the requisite mens rea element, possession of the material is required in order to be convicted of viewing child pornography. Someone opening an email that was sent without any identifying features in the subject header can equal someone sticking a note in someone elses pocket without their knowledge. Moreover, actual specific knowledge of the possession of child pornography is required.

Possible Defenses for Charges of Child Pornography from Unwanted Email

In the aforementioned hypothetical, the email account holder did not have the intent to view the child pornography and can raise this as a defense. Nevertheless, even if the requisite mens rea can be proven by the prosecutor, the email account holder who received the pornographic material did not have actual possession of the email. Specifically, the email containing the pornographic images was sent to the email account holders junk mail folder, which was set up to receive unwanted emails.

Once the email was sent to the email account holder, an argument can be made that the email account holder also cannot be convicted on a strict liability charge due to the fact that they not only did not meet the intent and possession elements required for conviction, but similarly, they did not request nor purchase such material. The email account holder should be able to argue that they were not the owner of the email whether or not they opened it, even though it appeared in their inbox since the email was not requested.

Although the owner of the email account opened the email out of curiosity resulting from the fact that the account holder did not know whom the email was from or what it contained, the email account holder could raise the defense of entrapment against the FBI. Such a defense may be raised, since the FBI was attempting a sting operation on victims who had no intent or desire to possess the material requiring conviction of the crime. Entrapment is a defense to a crime; it is not a negation of the crime for which one has been charged. The defense of entrapment, however, cannot be established until a crime has been committed. Since this was an unsolicited email that the owner of the email did not subscribe to, the FBI will be found to have overreached their powers in an effort to catch people in the act of viewing child pornography and thus a countersuit may arise by the email account holder.

VERDICTS IN NEED OF REPAIR – A School for Jurors Could Diminish the Increasing Acts of Misconduct

September 3rd, 1998

LOS ANGELES DAILY JOURNAL Vol.111, No. 171 Thursday, September 3, 1998

Whether it is in the name of public protection, or simply not to have to return deliberations the following Monday, jurors in California and perhaps nationally, are engaging in misconduct at an alarming rate, flouting judges instructions and tainting the judicial system.

The criminal justice system in particular – with longer and more indeterminate “life” sentences, not to mention the death penalty – cannot maintain its constitutional integrity if it cannot ensure that jury trials remain free from contamination by renegade jurors willing to ignore the rules, their duties under the law and their oath.

Runaway Jury?

One instance of this runaway train occurred a few months ago in People v. Stanford. In that case, a Solano County Superior Court judge was forced to reverse a murder conviction after discovering that the jury blatantly disregarded the court’s instructions not to consult outside sources or rely on anything other than the evidence presented at trial.

The court received evidence that the jury engaged in a number of acts of misconduct. For example, it was alleged that jurors consulted a dictionary in an attempt to define a technical term used by a prosecution fingerprint expert. To make matters worse, it was also alleged that one of the jurors attempted to undermine a defense theory by informing other jurors during deliberations that he had personal knowledge one of the defense witnesses should not be trusted.

Finally, it was alleged that, without bothering to notify the bailiff or the court, the foreperson told the other jurors during deliberations that a friend of the defendant followed him around town and made a threatening gesture at him by pointing a finger as if he were firing a gun.

Instances of Juror Misconduct

The incident of alleged juror misconduct is not an isolated occurrence. I myself have had two convictions reversed in the trial court due to egregious acts of juror misconduct.

In one serious second-strike case, the court granted the defense motion for a new trial for several reasons, including the fact that several jurors physically threatened another juror who initially refused to change her verdict to guilty. The jurors also verbally threatened the holdout juror by warning that if the defendant were not put in jail, then she might be his next victim.

In another case, the district attorney conceded the defendant’s motion for a new trial after he learned the jurors specifically disregarded instructions by consulting an outside source to define the term entrapment, the key theory employed by the defense at trial. One juror was studying to be a paralegal and brought her textbook into the jury room. The jurors relied on the textbook’s definition of entrapment instead of the one set forth in the jury instructions in reaching a guilty verdict. Thus, they violated the instruction the court read to them, which specifically prohibited the use of outside sources or materials to assist in deliberations.

A colleague described to me another incident of jury misconduct in her recent three-strikes trial. Due to lack of space, the jury was deliberating in the courtroom. Without notifying anyone that they had a question, the jurors grabbed the judge’s copy of the Penal Code from the bench and read through it in an attempt to clear up questions about the law that arose during deliberations.

These examples are only the tip of the iceberg. An extensive line of cases relate all types of jury misconduct: jurors independently investigating crime scenes, coming into court drunk or sleeping through the trial, lying under oath or failing to reveal certain prejudices or personal connections with witnesses or participants. See People v. Wong-Loung,159 Cal.520(1911); People v. Honeycutt, 20 Cal.3d 150 (1977); People v. Martinez, 82 CalApp. 3d 1 (1978); People v. Pierce, 24 Cal.3d199 (1979); In re Stankewitz, 40 Cal. 3d 391 (1985); People v.Holloway, 50 Cal. 3d 1098 (1990).

Less Blatant Acts of Juror Misconduct Are More Common

These examples reveal only the most blatant acts of misconduct. Many less egregious acts occur each day. These include jurors who dispense with deliberate justice and instead render a “quick” verdict late on a Friday afternoon, or jurors who are bullied to the point that they fail to provide the parties with their right to each juror’s individual verdict. See People v. Aeschilmann, 28 CalApp 3d 391 (1972).

The responsibility for the proliferation of misconduct cannot be placed solely on irresponsible or renegade jurors. After all, jurors get paid almost nothing for performing these essential duties, sacrificing days, weeks and even months of time away from loved ones and work, sometimes without their usual income.

Furthermore, jurors are forced to slog through instructions that are highly technical and often incomprehensible, even to attorneys and judges.

Jurors Important to Democracy

Nevertheless, once a jury takes its oath, our democracy demands that each juror strictly abide by the instructions he or she swore to follow. One way to try to ensure that jurors understand and uphold their obligations is to train the panels about basic instructions, legal concepts and the dos and don’ts of sitting as a juror. The common acts of prohibited conduct should be emphasized.

With the growing number of reversals as a result of juror misconduct, it is difficult to argue that a jury school or training program is out of line or an absurd idea. In fact, it may be just what the Constitution ordered.