Articles Posted in Sex Crimes

Criminal cases in federal court are driven by mandatory minimum sentences. Drugs, guns, child pornography and sex trafficking (among others) all carry mandatory minimum sentences which used to mean that, if the government has the evidence and won’t let you plead to a lesser crime, you do the time. That just might have changed today with the advent of United States v. Zullo, an important decision handed down today by the Second Circuit Court of Appeals.

Zullo concerns “compassionate release,” an old doctrine that has been brought back to life by, ironically, the COVID-19 pandemic that has been surging through the federal prisons (124 inmates dead, and counting). Compassionate release is the idea that when there are “extraordinary and compelling” reasons, judges should be allowed to release inmates before their sentences are over. Until 2018, compassionate release could only be sought by the Bureau of Prisons itself–judges could not act unless they were, in effect, asked to by the government that locked up the defendant in the first place. It pretty much never happened.

That changed in late 2018, when 18 U.S.C. 3582(c) was amended to permit compassionate release based on a defendant’s own motion 30 days after requesting the warden to file for him. Since COVID started, judges have been releasing many more inmates, most of them sick or elderly. Many sick and elderly people were released even before their mandatory minimum terms expired. Early releases are allowed so long as the judge finds that “extraordinary and compelling reasons” exist and the release is consistent with the objectives of federal sentencing, which are set forth in the Sentencing Reform Act, 18 U.S.C. 3553.

The Law of Zachary Margulis-Ohnuma and Law Offices of Daniel McGuinness filed an Amended Complaint in federal court today detailing harrowing allegations of severe, pervasive, routine, and tolerated sexual abuse by prison guards against six women. According to the allegations in the complaint, women have been raped by guards all over the state — from Lakeview Shock Incarceration Center near Lake Erie, to Taconic Correctional Facility just north of New York City.

Prison rape by male officers is so common, so poorly investigated, and so tolerated, that a culture of sexual abuse exists in the state prisons. The new complaint explains:

From 2015 to 2019, the Department of Corrections and Community Supervision (“DOCCS”) housed approximately 2,500 female inmates, around five percent of the total inmate population, in six facilities throughout the state. These women were guarded by male officers, who routinely engaged in illegal sexual activity with individual victim inmates over long periods of time. Under the New York Penal Law, an inmate can never consent to sexual activity with an officer. See N.Y. Penal Law § 130.05. Nonetheless, DOCCS supervisors cultivated a culture that allowed male staff to prey on female inmates to satisfy their sexual desires. Male staff were barely supervised and left alone with women under their control for long periods of time in unmonitored areas of the prisons. They had a system of warning each other if a supervisor was approaching and created a climate of fear and intimidation against any woman who complained about sexual attention from an officer.

Not that anyone would want to ride the subways right now, but the New York City Bar Association has come out in strong opposition to a proposal that would permit the MTA to ban people from trains and buses in New York based on little more than accusations relating to sex offenses. The ban is complicated and unwieldy — it would probably require some form of highly intrusive facial recognition technology to enforce; its provisions are discussed in detail in this new report from the City Bar. Principal attorney Zachary Margulis-Ohnuma chaired the Working Group that put together the report. The City Bar is an association of about 24,000 lawyers from around the world, including both criminal defense lawyers and prosecutors.

photography-of-people-at-train-station-1311544-300x200Bottom line is that the ban is currently included in Gov. Cuomo’s annual state budget, which means passage is practically automatic unless lawmakers step up to take it out, as the City Bar urges them to do. It will create a new enforcement scheme giving the MTA discretion to ban any person adjudicated as a Level Three sex offender as well as anyone who receives three tickets from the MTA relating to sexual conduct or assault, even if they ultimately beat the tickets. Just who in the MTA will exercise this discretion is mysterious. One reason the City Bar opposes the ban is it appears to violate due process by failing to give adequate notice and an opportunity to be heard. It is also excessively punitive to the point where it will actually undermine public safety by preventing people from working, going to school, and visiting friends and family — all activities that tend to prevent criminal recidivism. The ban undermines one of America’s dearest freedoms, the freedom to travel. It will be ripe for constitutional challenge from the outset. A similar ban proposed last year was voted down amid vocal opposition from criminal defense groups.

Charges of sexual offenses are incredibly serious and have consequences that affect people for the rest of their lives. The subway ban appears to be just one more attempt to pile punishment on a group with zero political clout. The City Bar’s efforts to speak for them, and for others affected by the misguided ban, should be a welcome part of the debate.

“Motion Granted.” With those words, the Hon. Joseph Zayas of Queens Supreme Court vacated the murder conviction and dismissed the indictment against Felipe Rodriguez.

It was a triumphant end to a fight that has consumed our office since 2015 and the Innocence Project since 2007.

In all those years, Mr. Rodriguez was granted executive clemency by Gov. Andrew Cuomo based on his stellar prison record, got married, worked steadily at a hotel, helped raise two beautiful children, and was reunited with his adult son, who was just three when Felipe was wrongly convicted in 1990.

Guest column by William Dobbs, Esq. from The Dobbs Wire.

Is the sex offense registry growing or shrinking?https://www.zmolaw.com/news/wp-content/uploads/2019/10/Screen-Shot-2019-10-13-at-3.20.30-PM-300x232.png

Hard to tell because the long-time keeper of the national statistics, National Center for Missing and Exploited Children (NCMEC), has stopped updating the figures.

Twelve federal appeals courts have said that the FBI acted in good faith when they used a Virginia warrant to search thousands of computers around the world in the controversial Playpen child pornography case. Our office last week asked for a special hearing in the Second Circuit to challenge that conclusion, with a series of simple arguments that, somehow, the appeals courts keep missing – including a Second Circuit panel that ruled on the warrant last month.

Click here for a redacted version of our appellate brief and here for our Petition for Initial Hearing En Banc, an unusual request effectively required by the Second Circuit’s August ruling.

The logic is simple and the stakes are high.

In the latest perversion of the laws against child pornography, Maryland’s highest court late last month upheld the conviction of a teenage girl for sending around a one-minute video of herself performing fellatio.

The recipient of the fellatio was not prosecuted.

Neither were the girl’s erstwhile friends who, after a falling out, may have distributed the video (the court, in a lengthy decision, pointed out that the video was originally distributed in a super-private group chat with two friends, only one of whom later became hostile to the girl in the video).

Defense attorneys were turned away from the high rise federal jail in lower Manhattan known as the Metropolitan Correction Center on Saturday morning. The Legal Department told us, it was “due to an earlier security issue.” Apparently, they were scouring the jail to find Jeffrey Epstein’s killer.

https://www.zmolaw.com/news/wp-content/uploads/2019/08/Screen-Shot-2019-08-12-at-6.18.46-PM-300x110.pngEpstein was found dead by hanging. He had been taken off suicide watch less than two weeks earlier. Suicide watch is a special unit where each prisoner is observed 24/7 by another prisoner who has special training. Epstein had been placed on suicide watch after he was found unconscious with neck injuries on July 23. Seems the prison hierarchy thought six days was enough even for a man whose rich, hedonistic, rapacious lifestyle had come to a crashing end. From there, they put him in the “SHU” — the notorious special housing unit, typically reserved for the most violent inmates. Then, they took away his roommate. Then, guards stopped checking in on his cell every thirty minutes like they are supposed to.

He was found dead at 6:30 a.m., according to the New York Times.

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.”

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