Dallas Criminal Lawyers - Broden & Mickelsen

DEFENDING CHILD PORNOGRAPHY OFFENSES IN FEDERAL COURT

Federal prosecutors are prosecuting child pornography offenses at an astounding rate both here in the Northern District of Texas and throughout the country.  Because of Broden & Micklesen’s reputation as one of the preeminent federal criminal defense firms in the United States, we were recently hired to represent the husband of an FBI agent who had been charged in federal court with distribution of child pornography.  While we often have to aggressively take on federal law enforcement agents in court, it was flattering that, when one of their own was in trouble, they turned to our firm.  The case of the agent’s husband is typical of how many child pornography cases usually arise and how they are prosecuted.

Often times, a federal agent, with a file sharing program, such as LimeWire, will sit at his computer in a distant state (in the case of the FBI agent’s husband, the federal agent was in South Carolina and the client was in Texas) and send search terms that he or she expects will identify computers with activated file sharing capabilities that have child pornography on them.  Child pornography is defined in the United States Code as meaning:

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where--

A.   the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

B.  such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

C.  such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

Once the agent locates a computer with alleged child pornography, he obtains images from the that computer using the file sharing program.  From there, the agent will get the ip address of the computer and obtain a search warrant from the computer’s internet provider to obtain the physical address where the computer is located.  The government then obtains a search warrant for the residence and the computer.  The search is normally conducted in the early hours of the morning.  The adults in the home are aggressively questioned in order to determine who was using the computer to download the alleged child pornography.  Usually, in an effort to protect others in the home, the person who downloaded the alleged pornography admits to having done so or at least admits that they are the one who uses the computer in question.  All computers in the home are then seized and the person is arrested.  Often if there are children in the home, Child Protective Services will get involved and interview the children.

Many people believe that by deleting a file on a computer, the file is completely “wiped” off the computer.  Often people charged with child pornography offenses learn the hard way that this is not true.  Law enforcement will send the seized computers off for a complete forensic analysis and often files that a person thought had been deleted will be found in the computer’s unallocated space.

In our experience, a person arrested for a child pornography offense will normally have no criminal record and no familiarity with the criminal justice system.  He will truly feel like he has fallen through the looking glass.  In many districts, he will be charged with DISTRIBUTION of child pornography since it was “distributed” through the file sharing program.  Distribution charges in federal court carry a five year mandatory minimum prison sentence and the person is NOT eligible for probation.  Moreover, while Broden & Mickelsen has, in many instances, been able to obtain the release of their clients pending trial, there is a presumption in the Bail Reform Act that no bond be set in these type of cases and the person should be detained pending trial.

It is very important that a person who finds themselves in this position hire an attorney skilled in federal court and skilled in defending child pornography case IMMEDIATELY.  A skilled attorney will increase the chances that the person will be released pending resolution of the charges.  A skilled attorney can also arrange for his own forensic analysis of the person’s computer to determine if the alleged child pornography was inadvertently placed on the computer or if there is some other defense to the charges.  Likewise, he cna determine if the images qualify legally as "child pornography."A skilled attorney will also analyze any “confessions” to determine if they are subject to a motion to suppress.

In our experience, many child pornography cases do ultimately wind up in a guilty plea given that, as mentioned above, the person will often have admitted to the offense at the time their computer is seized.  Nevertheless, this should only come after an experience lawyer fully evaluates the case.  Moreover, if a person is even considering pleading guilty to a child pornography offense in federal court, it is imperative that the person’s attorney understands the federal sentencing guidelines inside and out.  The federal sentencing guidelines, although advisory, attempt to guide judges in setting sentences. Unfortunately, over the past decade, the recommended imprisonment ranges for child pornography offenses have skyrocketed as a result of politicians attempting to curry favor with the public.  

It has gotten so ridiculous that many times a person who downloads child pornography and makes it available with a file sharing program actually faces a much harsher sentence than a person actually abuses a child.  In a recent case, based upon the number of images on his computer and other factors, the sentencing guidelines for a client we represented ,who was charged with distribution of child pornography through a file sharing program ,actually faced 151-188 months in prison.  We filed a sentencing memorandum, attempting to show the judge how dramatically the guidelines for these offense have been increased over the years by showing what sentence the guidelines would have called for over the past decade:

1987-11/1990 13 12-18 months

11/1990-11/1996 18 21-27 months

11/1996-11/2000 22 41-51 months

11/2000-4/2003 27 70-87 months

4/2003-11/2004 29 87-108 months

11/2004-pres. 34 151-188 months

Likewise, we pointed out that, had the client actually contacted a twelve year-old girl over the Internet, convinced her to meet him, and then the two engaged in repeated sexual acts, the client’s guidelines would only be 70-87 months- less than half of what he was facing for having images of child pornography on his computer.  We even pointed out, that under the sentencing guidelines, our client faced the same sentence as a defendant in a reported case who had paid $20 to have a mother hold down her nine year-old child while the defendant raped the young girl twice a week for two years. 

To see the full sentencing memorandum, click here:  SENTENCING MEMORANDUM

In more than in any other type of case, judges are ignoring the sentencing guidelines in child pornography cases.  Indeed, recent statistics show that judges in approximately 50 percent of the cases are imposing sentences in child pornography cases lower than provided for by the sentencing guidelines (although recall that, in distribution cases, there is a mandatary minimum sentence of five years).  In one case, the judge wrote:

The guidelines for child exploitation offenses were not developed using an empirical approach by the Sentencing Commission, but rather were mainly promulgated in response to statutory directives.  Specifically, the Protect Act directly amended guideline 2G2.2 by amending the guideline enhancements for specific offense characteristics.  These modifications do not appear to be based on any sort of empirical data, and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses.

The bottom line is that Congress has truly gone mad in increasing the penalties in child pornography cases. Therefore, if you find yourself charged in federal court with a child pornography offense, you must have a skilled attorney that knows how to defense these cases and who knows how to “deconstrtuct” the sentencing guidelines in these type of cases.   Even if you have to go outside the district in which you are charged, you owe it to yourself to find an attorney who is an expert in this area.  At the end of the day, it could save you from spending over a decade of your life in prison!

If you are charged with a child pornography offense, we urge you to call Clint Broden or Mick Mickelsen and we will consult with you about your case at no charge.

SHOULD I HIRE A TEXAS ATTORNEY THAT WILL ALSO POST MY BOND?

There are many Texas attorneys who advertise that they will “serve as both your bail bond agent (bondsman) and your attorney” and that they provide “competitive rates” for bail bonds that can later be applied to legal fees.

We strongly recommend that you NEVER hire an attorney that also agrees to be your bail bondsman.  Although “attorney bonds” are permitted in Texas, it appears that Texas may be the only state that explicitly allows this practice.

There is an excellent article written by two law professors, Dayla S. Pepi and Donna Bloom, entitled “Take the Money or Run: the Risky Business of Acting as Both Your Client's Lawyer And Bail Bondsman.” This article fully discuss this practice of attorneys acting as bondsmen and closely analyzes the practice..  As Professors Pepi and Bloom point out, most states and the American Bar Association(the “ABA”)  believe that it is unethical for attorneys to also act as their clients’ bondsmen.  For example, at the time of the article, ABA Formal Opinion 432, ABA's Standards for Criminal Justice 4-3.5 and ethics opinions and/or laws in Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Kansas, Kentucky, Michigan, Minnesota, New York, North Carolina, Oklahoma, Oregon, South Carolina, Virginia, West Virginia, and Wisconsin  suggested that this practice is illegal and/or unethical except in limited circumstances.

The reason for this is clear.  Where a lawyer is both a client’s attorney and bondsman, there is an obvious conflict of interest.  Remember, if a client fails to appear in court, a bondsman can lose the full bond amount, therefore, an attorney wearing both hats has conflicting loyalties.  For example, a lawyer might refrain from informing a client about the weakness in his case for fear the client will jump bond and the attorney will be out his bond money.  Conversely, a lawyer may be quick to get off a bond in order to protect his own assets when he learns information, sometimes confidential information, that causes him any unease that the client may not comply with bond conditions. Likewise, the lawyer might not inform you that he is getting off the bond and you could find yourself at your next court appearance facing a bond revocation and no lawyer to advocate against it.   In many ways, a bondsman, is your “jailer,” as you await trial.  You want your attorney to be your advocate and a person you can fully confide in.  You do not want your lawyer to be your  jailer who is constantly monitoring you and analyzing what you tell him in order to make sure you are complying with bond conditions.

Besides, what if, forever reason, you decide later decide that you do not want the lawyer who you hired to post your bond to represent you anymore?  You are probably trapped and that is just the way the lawyer wants it.  It is almost certain that the lawyer who also serves as your bondsman will tell you that, if you fire him, he will go off your bond.  This could result in you being arrested for an insufficient bond before you are able to hire a new lawyer and arrange for a real bail bondsman to assume your bond.

At Broden & Mickelsen, we have clients come to us after their attorney/bondsmen have went “off the bond” without providing any notice to the client.  We have successfully used a section of the Texas Occupation Code to force the attorney to return the bond fee to the client and/or stay on the bond.  Tex. Occ Code § 1704.207 provides: “If the court finds that a contested surrender was without reasonable cause, the court may require the person who executed the bond to refund to the principal all or part of the fees paid for execution of the bond.”  Nevertheless, despite this provision in the Occupation Code,  you could wind up sitting in jail while this is all sorted out if you do not have money to post a new bond.

The bottom line is that we strongly urge you to not only walk away, but quickly run away from any attorney who advertises that they also post bonds for their clients.  The lawyer will tell you that the reason they do this is to “help” the client or to provide “one stop shopping.”  Don’t be fooled.  In reality, most lawyers do this for one reason: to make more money.  They make money for legal fees and for acting as a bondsman.  Again, this practice is not prohibited in Texas, but is generally considered unethical by many states, bar associations, and legal scholars.  Why then hire a lawyer who is willing to engage in such a questionable practice in order to make a bit more money at the possible expense of their client?

HIRING A CRIMINAL DEFENSE LAWYER FOR A FEDERAL CASE

A potential client came to see me the other day.  The potential client was charged in federal court with possession and distribution of child pornography.  When the potential client called me to set up the appointment, it was clear that he did not have much money.  He was being represented by a Federal Public Defender (FPD) and was not working.  I do not charge for initial consultations and was happy to meet with the gentleman even though I recognized that it was unlikely that he would be able to retain our firm.

What is noteworthy regarding my consultation with this person is the discussion we had regarding counsel.  I explained to him that there are several hundred criminal defense lawyers in the Dallas area and I could recommend several great attorneys if he was being charged in STATE court.  However, he was being charged in federal court and faced a mandatory minimum sentence of five years.  I explained to him that there are only a handful of lawyers in the Dallas area that practice regularly in FEDERAL court.  Federal court, I informed him, is very different than state court.  Generally speaking the federal judges are stricter about following rules of procedure and there are stricter deadlines.  Most importantly, there are mandatory minimum sentences in federal court and sentencing in federal court are driven by the sentencing guidelines.  As I explained to the potential client, the sentencing guidelines for child pornography offenses are particularly open to attack and, therefore, it was very important that any lawyer he hired knew about “deconstructing” these guidelines and the latest case law related to these guidelines.  

  I explained to the gentleman that, given the small number of area lawyers who regularly appear in federal court, legal fees did generally tend to be higher to retain a qualified lawyer in a federal case.  I spent a great deal of time explaining to him that, if he was unable to hire a lawyer that regularly practiced in federal court, he was much better off keeping his FPD.  He told me that he was leery of the FPD because the FPD had not returned several phone calls.  I informed him that, while it is true that many FPDs carry high caseloads making it difficult to give the client the type of attention a retained attorney might give them, that FPDs were experienced in representing clients in federal court and the application of the federal sentencing guidelines.  As he left my office, I implored the potential client to keep his FPD unless he was able to retain the funds to hire a criminal defense lawyer that practiced regularly in federal court.

I talked to the potential client several weeks later and he told me that he was going to hire a lawyer who he found in the yellow pages.  I know this lawyer.  The lawyer pays to advertise his practice on several pages in the yellow pages and is regularly seen running around the state courthouse with a printout that has a long list of clients set for that day.  I looked the lawyer up on PACER (a listing of cases in federal court) and found out that, during his long career, he had only represented defendants in our federal district in handful of cases and, in many of those cases, he withdrew or was fired before the case was finished.  I said to the potential client, “Let me guess, the lawyer said he would ‘get started’ on the case if you brought him $1,000.”  The potential client was amazed I knew that.  The reason I knew that is because it  is that lawyer’s practice to take any money the client has available and then, without a written contract, put the client on a payment plan.  However, as soon as the client stops paying, the lawyer will try to withdraw from the case and keep the fees previously paid.

The most ironic thing is that when somebody runs a volume practice like this lawyer and makes money on the fact that he has thousands of clients paying small fees, it is impossible for the lawyer to communicate with his client.  Nevertheless, this is why the client was not satisfied with the FPD attorney in the first place.  Of course, given the volume of practice, if the lawyer ever had to take a case to trial and spend several days in trial, his practice would implode.  

Out of curiosity, I checked PACER recently and, at least for now, it appears that the potential client has taken my words to heart and has stayed with the FPD.

The bottom line is that, for defendants charged in federal court, it is important to realize that there are only a small subset of criminal defense lawyers that practice regularly in federal court.  For defendants charged in federal court who are seeking to retain private counsel it is imperative that you ask any lawyer you are considering hiring how many cases he or she has handled in federal court.  You should demand that the lawyer show you on PACER the number of cases he or she has handled in federal court.  If a lawyer is not willing to do this, it should tell you that he or she does not practice in federal court on a regular basis.  Again, the reason this is so important is that the rules in federal court and the sentencing guidelines used in federal court make federal court practice very different than state court practice.

Finally, if you cannot afford a lawyer who handles at least several cases a year in federal court, I almost guarantee you that you will be better off with a Federal Public Defender than trying to hire a lawyer out of the yellow pages or a lawyer who rarely deals with federal procedures and the United States Sentencing Guidelines.