Articles Posted in Sex Crimes

Federal Child Pornography Lawyer Discusses YouTube Algorithm | Law Office of Zachary Margulis-OhnumaAn article in today’s New York Times suggests that there is an “open gate for pedophiles” on YouTube because of the way the video hosting service suggests videos to users.

If you look at one video of a partially clothed child on YouTube, the service’s algorithm will send you to more and more videos that are similar, the Times reports.

That has the effect of turning harmless videos of children into “sexualized imagery.”

A 200-month sentence imposed on a first-time child pornography offender was thrown out by the Second Circuit Court of Appeals on Friday because the judge erroneously assumed that the defendant must have committed a prior sex offense.

The reversal was the second time that the circuit court vacated the sentence imposed on Joseph Vincent Jenkins, who was convicted after trial of transporting child porn on thumb drives and laptops as he traveled to his parents’ vacation home in Canada. The first sentence, 225 months, was too long because there was no basis for Chief Judge Glenn T. Suddaby’s conclusion that Jenkins was at a high risk to re-offend. Jenkins had never been convicted before, was not accused of attempting to harm a child, and “never spoke to, much less approached or touched, a child.”

This time, Judge Suddaby erroneously imposed nearly seventeen years on a first-time, non-violent, child pornography offender by cherry-picking studies that, he said, showed that sex crimes against children are much more common than what is reported. He found that studies show “inconsistent findings concerning the prevalence rate of sex offending by non-production offenders.” Judge Suddaby went on to note features of Jenkins’s personality identified in a competency report, which, he said were correlated with sexually dangerous behavior. Based on this analysis, Judge Suddaby concluded that “it was likely that Jenkins had committed a prior–undetected–sex offense, that he therefore had a high risk of recidivism, that a lengthy sentence was justified.”

This year’s New York State budget passed earlier this month with the most sweeping criminal justice reforms in at least a generation. The changes go into effect in 2020 and will change almost everything about defending people in New York State cases, where the vast majority of arrests in New York are handled. How will they affect your case? Read on.

First, “Discovery Reform” will replace the New York “Blindfold Law.” Under the current system, defense lawyers learn only what DAs want to tell them abut the case until the moment before trial. Under the new rules, starting on January 1, 2020, discovery is going to be “open, early and automatic.” That means that prosecutors will have to hand over all information about the case “as soon as practicable” but not more than 15 days after the defendant is arraigned, at least in most cases. And discovery is much broader than it ever was, including not just trial exhibits but also all witness statements, all grand jury minutes (not just of testifying witnesses), names and contact information for all potential witnesses, exculpatory information, and pretty much anything else in a prosecutor’s file. If you are being charged with a felony, you get your own statements at least 48 hours before the grand jury presentation–that can give you a chance to testify in the grand jury without worrying about getting tripped up by a statement you made previously to a detective. Perhaps most importantly, if the DA makes a plea offer, you are entitled to full discovery before the DA can withdraw the plea offer. Prosecutors cannot condition the plea offer on a waiver of discovery rights. No longer will defense lawyers ask for discovery during plea negotiations only to be told, sarcastically, “your client knows what he did.” Click the link for Part LLL of Chapter 59 of the New York State Laws of 2019, the full text of the new New York criminal discovery rules.

Second, you have a much better chance of getting released while your case is pending under New York state’s new bail rules. There will be mandatory release for all misdemeanors and non-violent felonies–except, of course, sex offenses (and cases involving contempt of domestic violence court orders). For more serious offenses, the court can only set money bail with the least restrictive conditions and with at least three options or ways to pay: cash, unsecured bond, and partially secured bond. Electronic monitoring can be used to prevent flight in serious cases, but you won’t have to pay for it and there are many limitations. If the court sets a monetary bail, it will have to consider the defendant’s ability to pay and any undue hardship, and it put its reasoning on the record. As a practical matter, the reforms should lead to fewer thoughtless decisions over bail that needlessly separate people from their families even though they are presumed to be innocent. Click the link for Part JJJ of Chapter 59 of the New York State Laws of 2019, which shows the amendments to the bail rules and Desk Appearance Ticket provisions.

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Imagine you are met on the tarmac getting off a plane at JFK Terminal Two by armed customs officers. They tell you to come with them. They drive you to a secure area in Terminal Four, where foreigners are “processed” — i.e detained until they are admitted into the U.S. or sent to immigration custody. At Terminal Four, the officers do a normal customs search, then ask you to wait in a windowless room. Plainclothes investigators enter and tell you that they are going to search your cell phone and iPad. “No you are not,” you say. “I have a Fourth Amendment right to be free of unreasonable searches and seizures.” They respond that the “protection of the Fourth Amendment does not apply at the U.S. border.” They give you a “choice” — you can leave, but you have to leave your cell phone and iPad behind to be searched. Or you can give them your passcodes and, if they don’t find anything on your devices, you can be on your way. You give them the passcodes. They find pictures they believe are child pornography — they are not — and take you away in handcuffs.

Is this a “routine” border search, or something else? Have your Fourth and Fifth Amendment rights been violated?

Those are questions that principal attorney Zachary Margulis-Ohnuma will argue tomorrow before a panel of judges at the New York Supreme Court Appellate Division, Second Department. The ACLU and Electronic Frontier Foundation argued in an amicus brief that, under these circumstances, a warrant based on probable cause is required to search the devices. The state believes the search was proper because a federal agent had some vague notion that a house associated with a family member of the defendant was at some point in the past used to download child pornography. We’ll argue that more is needed to justify a search of electronic items at the border, just like a warrant was required to search a cell phone incident to arrest in the 2014 Supreme Court case Riley v. California. Moreover, under these circumstances the provision of the passcodes was not a voluntary act but was the product of coercion, and thus information derived from the passcodes cannot be used against the defendant under the Fifth Amendment.

https://www.zmolaw.com/news/wp-content/uploads/2019/02/Screen-Shot-2019-02-21-at-3.18.47-PM-231x300.pngTop New York State officials claimed that they cannot be sued for the sex abuse, cover-up, and retaliation against Yekatrina Pusepa, a female inmate at Bedford Hills Correctional Facility, at the hands of a prison guard. Last week, a federal judge said they were wrong.

In October 2017, our office, partnering with the Law Offices of Daniel A. McGuinness, P.C., filed a lawsuit alleging that prison officials created an environment that failed to protect Ms. Pusepa, and other female inmates, from the sexual advances of correction staff. Ms. Pusepa, who was 25 at the time, was repeatedly approached by Corrections Officer Ruben Illa. Illa’s advances were notorious in the prison and, the complaint alleges, prison staff knew what Illa was doing and did nothing to stop it, preferring to hold Ms. Pusepa out as bait to try to catch Illa in the act. On one occasion, Illa groped Ms. Pusepa in her cell while two inmates held up a curtain to block the view. On another, he tried to have sex with her in a supply closet, but got scared off. On December 2, 2015, Illa called Ms. Pusepa out to the prison’s medical clinic for no apparent reason, then wrote her up for being out of place. After resigning from the prison, he pled guilty to filing a false report. He denies the sexual contact.

But Ms. Pusepa’s ordeal did not end with the sex abuse. When she refused to cooperate with a Department of Corrections investigation, she was thrown into solitary confinement on trumped-up charges, purposely left alone with a notoriously violent inmate, and verbally threatened and harassed by prison staff, the suit alleges. According to the lawsuit, top officials including Anthony Annucci, Acting Commissioner of DOCCS, Jason Effman, Associate Commissioner and PREA (Prison Rape Elimination Act) Coordinator for DOCCS, and Sabina Kaplan, the Superintendent at Bedford Hills were responsible for what happened to Ms. Pusepa because they were deliberately indifferent to the danger she faced from the guard who assaulted her.

32152929167_ec5898bebd_k-300x214Senate Bill S2440, the New York Child Victims Act, was signed into law by Gov. Andrew M. Cuomo on Thursday. The new law, which has been a goal of victims’ rights advocates for years, extends the statute of limitations for child sex abuse victims to file civil lawsuits, reviving old claims that, until yesterday, were time-barred. It also gives prosecutors more time to bring criminal charges going forward.

Survivors have a year from yesterday to bring civil claims for childhood sexual abuse that were previously barred by a statue of limitations. People who now wish to seek civil damages against their abusers can file a lawsuit, no matter how long ago the conduct occurred, as long as the suit is filed within the next 364 days.

If you were sexually assaulted as a child in New York and might be  interested in seeking damages against the abuser, you should consult an attorney as soon as possible to discuss your options. This second chance to hold your abuser accountable goes away soon. This blog post is not legal advice and only a qualified attorney can advise you about how the new law applies to your particular circumstances.

On Monday, the New York Legislature passed a series of reforms that will significantly impact civil lawsuits and criminal prosecutions for sexual abuse of children. Senate Bill S2440, or the Child Victims Act, extends the statutes of limitations to allow victims who are abused before age 18 more time to file lawsuits — and more time for the police and prosecutors to bring criminal charges. Governor Cuomo is expected to sign the measure.

The Child Victims Act affects the law in three major ways:

  1. It gives victims until they turn 55 to file lawsuits against their abusers or institutions that allowed their abuse, notwithstanding the other limitations periods in the New York Civil Practice Law and Rules which used to impose overlapping time-bars on civil child sex abuse cases.

The U.S. Sentencing Commission kicked off the new year with a comprehensive report analyzing data from federal sex crime cases. The report, which runs 81 pages plus a 62-page appendix of charts and graphs, contains some eye-opening conclusions. The most significant for child pornography cases is this: even though there is “little meaningful distinction between the conduct involved in receipt and possession offenses,” average sentences for receipt are much longer than sentences for possession. The Sentencing Commission has been calling on Congress to “align” the penalties for receipt and possession of child pornography since 2011. The effect on sentencing of the different child pornography offenses is shown in the following chart:

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The takeaway is something we clearly already knew: what you plead to matters. Average sentences for possession are lower than sentences for receipt — 26 months lower on average — even though the conduct is the same. Distribution convictions, which carry the same mandatory minimums as receipt, are much higher. Defendants and their attorneys must press prosecutors to permit them to plead to possession and not receipt or distribution. Even though receipt or distribution can be charged in the vast majority of cases, some prosecutors are open to pleas to possession, especially if the defense team can present mitigating circumstances.

The effect of statutory mandatory minimums is especially significant because the U.S. Sentencing Guidelines, which used to be binding on sentencing judges, are now merely advisory. As a result, judges increasingly impose below-Guidelines sentences in child pornography cases, which is illustrated in the following chart from the Commission’s report:

https://www.zmolaw.com/news/wp-content/uploads/2018/12/Screen-Shot-2018-12-29-at-9.03.52-PM-300x265.pngAs of December 27, there were 180,429 prisoners in federal custody. Think about that a minute — about a fifth the population of San Francisco behind bars for interstate crimes. No one seriously thinks this many people should be housed, clothed, fed, and secured with federal tax dollars. (More than 2 million people are incarcerated in the U.S. when you include state and local facilities, way more than any other country in the world, including China, which has four times as many people and notoriously strict laws).

There are two reasons for the staggering number of federal inmates: over-criminalization and excessive sentences. In other words, too many things you can do can land you in federal prison: crimes like fishing in the wrong waters, or charging a health insurer for dental work performed by an unlicensed dentist. And when people are locked up for federal crimes, it is for too long, like when a teenage street-level drug dealer is held liable for the whole drug conspiracy that he is part of.

So what a breath of fresh air when the lame-duck Congress briefly came together at the end of 2018 to agree on federal criminal justice reform. Pres. Donald J. Trump signed the so-called “First Step Act” into law on December 21. The press crowed that Trump would “go down in history” and that the changes represented a “sweeping reform.” Probably none of them read the 148-page law, which will have no effect on the vast majority of people caught up in the federal criminal justice system. At a human level, the most important provision of the new law is that it bans the barbaric practice of using restraints on female inmates as they are giving birth. You read that correctly. Until recently the Bureau of Prisons routinely shackled women in the hospital, in labor, as though they might take the opportunity to escape as their baby was being born. It took Donald Trump and a voted-out-of-office Republican congress to finally make that illegal.

Under the Sex Offender Registration Act, registered sex offenders must tell New York State about all “internet accounts with internet access providers” and “internet identifiers that such offender uses.” Does that mean you have to disclose your social media accounts?

Most police and the the State Division of Criminal Justice Services would have said yes. Police agencies routinely scour the internet looking for sex offenders who are on social media but have not properly disclosed their presence. People always thought hiding a social media account was a felony — failure to register under Corrections Law Sec. 168-t.

Turns out it is not.

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