August 2011 Archives

Florida Man Pleads Guilty to Cyberstalking for Posting Nude Pics on Facebook Profiles

August 24, 2011, by The McKellar Law Firm, PLLC

Earlier this month, Tampa, Florida man pled guilty to cyberstalking and unauthorized access to a computer, according to an article in Tampa Bay Online. Joseph Campbell gained access to over 350-500 email accounts by sending out fake emails claiming that the recipients had received greeting cards. The emails would then instruct the recipients to type in their email addresses and passwords. After gaining access to the email accounts, Campbell took any nude or semi-nude photos found in a victim's email account and put it as their Facebook profile picture. Campbell also sent the photos as well as any lewd videos of the victims to different websites that he posted. Under the plea agreement, Campbell admitted that he posted the victims' photos and videos to harass and cause the victims to suffer emotional distress.

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A person can be found guilty of cyberstalking under 18 U.S.C.A. § 2261A, which deals with interstate stalking in general. According to the statute, a person can be charged with stalking if they "travel[] interstate ... with the intent to kill, injure, harass, or intimidate another person," and doing so "places the person in reasonable fear of death of, serious bodily injury to, or causes substantial emotional distress to that person." Id. A person may also be found liable if reasonable fear of death, serious bodily injury, or emotional distress happens to a person's immediate family member, spouse, or intimate partner.

Being found guilty of interstate stalking or cyberstalking can have harsh results. With 18 U.S.C.A. § 2261 outlining the punishments for violating 18 U.S.C.A. § 2261A, if a person's death results, a defendant can be sentenced to life or any term of years. If there is a life-threatening bodily injury to the victim, then the sentence will be no more than 20 years. If the bodily injury is serious or a dangerous weapon is used in the offense, then the sentence will be 10 years. If emotional distress or any other result happens, then the sentence will be no more than 5 years.

To be found guilty under 18 U.S.C.A. § 2261A, actual "intent" needs to be proven. In U.S. v. Infante, No. 10-6144M, 2010 WL1268140, at *1 (D. Ariz. Mar. 30, 2010), the Federal District Court found that the defendant was not guilty since there was no proof that the defendant acted with a "specific purpose to cause an adverse emotional reaction to the victim." Id. at *5. While the defendant sent flowers, e-mails and even traveled from Arizona to New York unannounced after the victim informed the defendant that she never wanted to see him again, there was no evidence that the defendant intended to harass her. None of the e-mails sent had any threatening statements, and no threatening actions were ever taken towards the victim.

In U.S. v. Jordan, 591 F.Supp.2d 686 (S.D.N.Y. 2008), the Federal District Court came to a different conclusion. In this case, the defendant made false internet postings offering sex and housing using the victim's telephone number, as well as told the victim that he would "beat up her ex-boyfriend." Id. at 708. While the defendant claimed that his only motive was to get the victim to return to him, the court found that this was not a defense when he also intended to cause the victim to suffer substantial emotional distress or have a reasonable fear of bodily injury.

Tennessee Police Officer Pleads Guilty to Federal Enticement Charges Involving 2 Minors

August 15, 2011, by The McKellar Law Firm, PLLC

According to a press release from the U.S. Attorney's Office for the Eastern District of Tennessee, a Deputy Sheriff in Grainger County, Tennessee has pled guilty to contacting 2 female minors in order to entice them to engage in sexual intercourse with him. The girls were 13 and 16 years old.

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Enticing a minor to engage in any sexual activity is an offense under 18 U.S.C. § 2422(b). According to subsection (b) of the statute, any person who uses "the mail or any facility or means of interstate or foreign commerce, ... [to] knowingly persuade[], induce[], entice[], or coerce[] any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be ... imprisoned not less than 10 years or for life."

On top of actually calling a minor to entice them to engage in illegal sexual activity like the deputy above, case law has shown that enticing a minor via the internet can also satisfy the statute. It also does not matter if the person enticed is actually a minor. In U.S. v. Kaye, 451 F.Supp.2d 775 (2006), the defendant was found guilty of enticing a minor to engage in a sexual act even though he was actually conversing with an undercover agent posing as a minor on an internet chat site. While the defendant tried to argue that he did not violate the statute since his activity was discovered during a sting operation where no minors were actually involved, the court did not agree with his position. Quoting the Virginia Supreme Court, "[w]hether the targeted victim is a child or an undercover agent, the defendant's conduct, intent, culpability, and dangerousness are all exactly the same." Id. at *2. This case is also an example of how this statute is used in the context of sting operations conducted by Federal agents to prevent the sexual abuse of children who use the internet.

Also, merely talking to a minor with the intent to persuade or attempt to persuade is enough to be indicted under 18 U.S.C. § 2422. No intent to actually perform a sexual act following persuasion needs to be found. In U.S. v. Bailey, 228 F.3d 637 (6th Cir. 2000), the defendant argued that in order to be found guilty under the statute, actual intent to perform the illegal sexual act should be found since finding otherwise would not only criminalize "mere sexual banter on the internet," it would also violate the right of free speech. Id. at 638. The Sixth Circuit, on the other hand, ruled that conviction under the statute "only requires a finding that the defendant had an intent to persuade or attempt to persuade" since "Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves." Id.


Georgia Doctor's Health Care Fraud Conviction Reversed on Appeal

August 10, 2011, by The McKellar Law Firm, PLLC

In United States v. Ly, No. 09-12515, 2011 WL 2848477, at *1 (11th Cir. July 20, 2011), the United States Court of Appeals for the 11th Circuit reversed a pro se defendant's conviction when it was apparent that the defendant misunderstood his right to give a narrative testimony without having to be cross-examined by the prosecution.

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Defendant Hung Thien Ly was a medical practitioner who was indicted on 129 counts of writing prescriptions for certain medications "outside the usual course of professional practice and without legitimate medical purpose" under 21 U.S.C. § 841(a)(1) an 21 C.F.R. § 1306.04. Ly claimed that he was indigent and therefore requested court-appointed counsel. The Government opposed the motion, arguing that Ly moved all his assets into his wife's name and was therefore not indigent. The magistrate judge accordingly denied Ly's request. Ly subsequently pled not guilty and, after the magistrate warned Ly of the dangers that came with representing himself at trial, decided that he would still defend his charges pro se.

Ly had no prior legal training or experience in a courtroom. After the prosecution presented their arguments, the court explained that Ly could testify as to what kind of practice he had and how he handled his patients. Ly was unaware that he could testify in narrative form and therefore did not need to be questioned by opposing counsel. After Ly revealed his confusion to the court, the judge did nothing to correct Ly's misunderstanding. Ly therefore chose not to testify on his own behalf and was subsequently found guilty on all 129 counts of health care fraud. Ly then appealed his case, arguing that the district court denied him his right to testify by failing to correct his misunderstanding regarding the availability of narrative testimony.

On appeal, the Government argued that a district court has no duty to act as a pro se defendant's lawyer and therefore had no duty to correct Ly's misunderstanding. The 11th Circuit held, however, that a court has an obligation to protect pro se defendants from inadvertent forfeiture of the right to testify if the court has already engaged in a conversation with the defendant regarding that right. Since Ly had no legal training or courtroom experience, it was reasonable for Ly to believe that direct testimony only allows for a question-and-answer dialogue between an attorney and a witness. Once it was apparent that Ly misunderstood this right, the district court should have corrected Ly. The 11th Circuit also stressed that their holding only applies in situations like Ly's where a court has already discussed with the defendant their right to testify and it is apparent that this right is misunderstood by the defendant.

Bank Teller Indicted for Bank Fraud and Identity Theft in Federal Court

August 3, 2011, by The McKellar Law Firm, PLLC

Bank fraud attorneys often deal with fact scenarios similar to the recent case of a former bank employee in Pennsylvania who was indicted on federal bank fraud and identity theft charges. According to PhillyBurbs.com, Jennell Digby worked for TD Bank in Philadelphia when she met Kashon Adade, one of her alleged co-conspirators. According to the indictment, Adade provided Digby with the Social Security Numbers of TD Bank customers. Digby would confirm that the Social Security Numbers were those of account holders then give Adade additional information about those account holders such as their names, account numbers, and account balances. Adade and others involved in the scheme allegedly used this information to withdraw over $70,000 from these account holders. If convicted, Digby could spend up to 41 years in prison and face a fine of $2 million.

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Digby is charged with bank fraud under 18 U.S.C. § 1344. This provision provides that a person who "knowingly executes, or attempts to execute, a scheme or artifice - (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations or promises." This provision provides a penalty of up to 30 years in prison, a $1 million fine, or both. Prosecutors allege Digby violated this statute because she, Adade, and their co-conspirators engaged in a scheme to defraud TD Bank by fraudulently using illegally obtained account information to withdraw bank funds.

In order for a defendant to be liable under § 1344, the government must also prove that the defendant made a material misrepresentation or concealed a material fact in committing the fraud. The materiality requirement is an element of fraud at common law. The Supreme Court has determined that it is also an element that the government must prove beyond a reasonable doubt under the bank fraud statute, even though the statute itself does not specifically require materiality. Typically, proving materiality requires showing one of two things. First, a matter is material if a reasonable person would consider the matter in determining how to act. Second, a matter is material if the person making the representation or omission knows that the other party considers it important in determining how to act, regardless of whether a reasonable person would consider the matter important or not. In other words, if the matter is sufficiently important that it could change the behavior of a reasonable party, then the matter is material.

In many cases, however, demonstrating that a material misrepresentation occurred is not very difficult. For example, in United States v. Miller, a federal appeals court upheld a bank fraud conviction under § 1344 where the defendant used his employer's ATM card to withdraw money from her account without her permission. The Court of Appeals held that each time the defendant put the card in an ATM, he was representing to the bank that he was authorized to withdraw funds. Additionally, the Ninth Circuit held that a borrower who misrepresents his or her ability to repay a loan from a bank or financial institution may be prosecuted under § 1344 because such statements could influence the lender. Thus, there are a number of activities that can give rise to liability under § 1344 provided that the government can show the defendant acted with an intent to defraud.

Man Pleads Guilty to Violating Arms Export Control Act by Selling Unmanned Aerial Vehicle on Ebay

August 1, 2011, by The McKellar Law Firm, PLLC

A guilty plea was entered in federal court last week in a case involving the illegal importation of an unmanned drone according to an announcement by the Department of Justice. Henson Chua was indicted in March for trying to sell an unmanned aerial vehicle known as a "Raven" in violation of the Arms Export Control Act ("the Act"). The Act prohibits buying and selling certain military items without a license, and the Raven is such an item.

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According to the facts outlined in the plea agreement, the Department of Homeland Security and Immigrations and Customs Enforcement ("ICE") learned that an unmanned drone was listed for sale on eBay for $13,000. Homeland Security agents began an investigation with an undercover agent posing as a potential buyer. The "buyer" informed Chua that he planned to resell the drone outside the United States after receiving it from Chua. The agents purchased and received the drone last year. Chua was arrested earlier this year when he entered the US.

Chua pled guilty to one count of causing the temporary import of a defense article without authorization under 22 U.S.C. § 2778. This provision requires a party to obtain a license from the federal government before importing certain munitions. This section of the Act also provides penalties of imprisonment for up to 20 years, a fine up to $1 million, or both.

In announcing the plea, ICE agent Susan McCormick stated, "The unlawful import of military technology poses a serious threat to our national security. ICE is committed to working with the U.S. Attorney's Office and military investigators to protect the American public and our military troops overseas from this kind of technology falling into the wrong hands."

The alleged purpose of the Act is intended to do just that: prevent American military equipment and technology from reaching those who would use it against American interests. In this case, the Department of Homeland Security recovered the drone, but it's worth noting, however, how Chua claims he obtained the drone in the first place. Chua stated that he was able to purchase it at an auction conducted by the Philippine government. Apparently, the Philippine government considered the Raven to be abandoned property. While Chua's case represents a success for the prosecution in using the Act to prevent such equipment from potentially falling into the hands of arms dealers, criminals, or hostile governments - who apparently need only sign up for eBay to obtain it - the case also illustrates the limits of such laws when these items are already available for sale halfway across the globe. Buyer (and seller) beware.