Articles Posted in Sex Crimes

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The United States Congress and federal courts have developed a legal framework for prosecuting people suspected of engaging in the production of pornographic materials involving children. In order for federal child pornography charges to be applicable to an alleged crime, prosecutors must prove that the federal government has jurisdiction over the alleged crime. The Eleventh Circuit United States Court of Appeals recently released an opinion affirming a man’s federal child pornography conviction, which the court assumed jurisdiction over based on the Commerce Clause of the United States Constitution.

According to facts discussed in the recently published appellate opinion, the defendant was arrested and charged for attempting to produce child pornography in Florida after he allegedly sent disturbing messages to the users of a parenting website. The defendant, posting under an alias, appeared to have requested pornographic material from several different parents who had been discussing their children on the website. A concerned user reported the defendant to law enforcement, who obtained a warrant and searched his home. Images of child pornography and other sexually disturbing material involving children were found at the home. The defendant was then charged in federal court for attempting to entice parents to produce child pornography and send it to him over the internet. Based on his clear requests and other evidence of his sexual interest in children, a jury convicted him on the attempted production counts, and he was sentenced to decades in federal prison.

The defendant appealed his conviction to the 11th Circuit. The defendant argued primarily that his conduct was not a sincere attempt to obtain child pornography and was acting only as an “internet troll” who was being abrasive and offensive just to upset people for his own entertainment. The defendant argued that there was no real chance that any of these parents would follow his request and produce child pornography for him involving their children. The Appeals court was not persuaded by the defendant’s arguments. The court held that his desire to possess child pornography (demonstrated by his actual possession of such images at his home), coupled with his repeated, explicit requests for such material online, constituted sufficient evidence from which a jury could convict him. As a result of the appellate decision, the defendant will most likely be required to serve his federal prison term.

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Over the last several decades, the accelerated development of DNA testing and other forensic technologies has resulted in Florida prosecutors pursuing charges for many formerly “cold cases.” The statute of limitations in Florida for sex crimes can be extended indefinitely under certain circumstances. As a result of these laws, charges may be brought against alleged sexual offenders years or even decades after the offenses occurred. The Florida Court of Appeal recently affirmed the conviction of a man who was arrested in 2009 for a murder and sexual assault that he allegedly committed in 1988.

The victim from the recently decided case was found dead in a Florida field in 1988. She appeared to have been sexually assaulted before she died. Investigators found a suspect’s fingerprints at the scene of the crime, as well as biological evidence under the victim’s fingernails. Although evidence was collected after the 1988 murders, no suspect was identified, and the case went cold. In 2009, detectives investigating the cold case ran the fingerprints and DNA evidence from the 1988 crime scene through updated databases and found that the defendant’s DNA and fingerprints matched the evidence from the crime scene.

The defendant was arrested and charged with murder and sexual assault. The murder charges were dismissed because the statute of limitations had expired; however, Florida law extends the statute of limitations for sexual assault charges resulting in a death indefinitely, and the defendant was ultimately convicted of the sexual assault charge and sentenced to life behind bars. The DNA and fingerprint evidence were the only pieces of physical evidence offered against the defendant at trial.

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kitna-238x300 Former Florida Gators backup quarterback Jalen Kitna (“Kitna”) was arrested in late November for two counts of promotion of child pornography and three counts of possession of child pornography, both violative of Florida Statute 827.01.  While unfortunately it is not uncommon for young collegiate athletes to find trouble with the law, this is the first arrest that I am aware of, involving a non-hands on sex crime involving an athlete at a reputable football program.  According to news outlets, likely basing their information on a press release from the Gainesville Police Department (“Gainesville PD”), Gainesville PD and an Internet Crimes Against Children (“ICAC”) task force served a search warrant on Kitna’s residence after Gainesville PD received a tip from the National Center for Missing and Exploited Children (“NCMEC”) indicating that a discord member account linked to Kitna had shared two images depicting child sexual abuse with another discord member.

Further investigation found that the images were likely shared from Kitna’s residential address, using a discord account likely belonging to him.  Upon law enforcement interviewing Kitna, he is alleged to have admitted to sharing the images but thought they were legal because they were on the internet.  Kitna indicated that he only realized his folly when the discord member he shared the imagery with reacted negatively to Kitna’s actions, ultimately then receiving notice that his discord account had been cancelled due to violating company policy.  Kitna’s phone was seized during the time of the interview only to reveal three additional images depicting child sexual abuse, such images likely comprising the three possession charges.

Despite Kitna’s case being in the media due to his status as a University of Florida quarterback, the course of the investigation leading to present day is really very common in an allegation involving a sex crime involving child pornography.  Our firm handles a considerable amount of child pornography allegations and it is not uncommon for an individual or internet service provider (“ISP”) who has either received child pornography or in the case of an ISP, to detect file names commonly affiliated with child pornography, to make a report to the NCMEC.  NCMEC is an organization aimed and ceasing the exploitation of children and aiding in law enforcement’s prosecution of child pornography crimes.  Once NCMEC verifies the tip, they generally pass the tip along to the special victim’s unit of the law enforcement agency with jurisdiction (In this case Gainesville PD because Kitna lived in Gainesville).  Depending on internal policy and decision making, once the law enforcement agency receives the tip, they will either seek a collaboration with ICAC and get a search warrant or seek the warrant on their own.  In this case, likely due to better resources, Gainesville PD collaborated with ICAC.  ICAC is a network of 61 (as of the date of this blog) task forces comprising both Federal and State law enforcement agencies and their accompanying prosecutorial offices aimed at prosecuting internet crimes against children.  Over the years as law enforcement has focused more on sex crimes and more specifically, sex crimes facilitating the internet, coalitions of law enforcement agencies specialized in combating this kind of crime have grown.

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It’s that time of year again folks! Downtown Tampa and Bayshore Boulevard will be packed this weekend with pirates doing all sorts of piratey things. The rum will flow, the booty will be plundered, yards will be peed in and some of us might even get arrested! While part of this sounds like perfectly reasonable pirate behavior, the eight different law enforcement agencies working this weekend and many local homeowners might have a slightly different take on our beloved festival. While I can personally attest that our little celebration is a blast, there is no disputing that some take it a bit too far, only to find themselves sitting pretty in a drunk tank until they can be transported to the Hillsborough Hilton. No it’s not ok to pee on that road cone or invite yourself in to Derek Jeter’s fantastic new house. With each passing celebration local law enforcement has tightened the belt on the festival and worked to contain the alcohol to specified locations. Take your drink outside of those “wet zones” and you could find your wallet to be a bit lighter.

No, the police really aren’t looking to give you a hard time at Gasparilla, nor do they really want to mess with having to arrest your royal drunkenness. Having attended many a Gasparilla parade I’ve witnessed with my own eyes a fiasco or two where an otherwise fine lad was led away in silver bracelets. Generally the police made contact with him and asked him to go back to a wet zone or simply asked him to cool it on some other form of jackassery. I’ve also received a ton of phone calls from those who got a little loud and rowdy and ended up in the clink. Honestly, at this point it’s kind of difficult to get arrested at Gasparilla unless you’re just asking for it. If you drink outside of the wet zone you will likely be fined $75 for a first offense, $150 for a second, $300 for a third, and $450 if you are ridiculous enough to do it a fourth time. While no one wants to be fined during Gasparilla, be happy Tampa passed this ordinance as it may prevent you from going to jail. It’s the lesser of two evils people. If you’re so hammered that you can’t stand up or speak, you’re likely going to be arrested for public intoxication, miss out on the rest of the fun, and will enjoy the thrill of sitting in the office of a Tampa criminal attorney next week. What if you have to pee? While at times the bush in your immediate field of vision might offer a reasonable place to relieve yourself, you are not in the backwoods of Alaska, nor are you on an airboat in the Everglades miles from civilization. You’re in the fine city of Tampa, home to the worst football team in the NFL and the best chicken wings of all time. I’m looking at you Hattrick’s! Hose that bush down and you could find yourself charged with a violation of Tampa City Ordinance 14-52 for public urination, thereby subjecting yourself to a $500 fine and 60 days in jail. You don’t have to pee that bad. What if that sweet babe with the sock on her head and 356 strands of beads around her neck (I wonder how she got those??) invites you to the aforementioned pee bush for a little romantic “live action?” Think twice hombre! If you make a baby in public you’re going to go to jail. Scientific fact. No, the wet zone won’t provide a loophole so don’t call me Monday and ask. No one, and I mean no one, wants to see what either of you are packing. If said package is out, soaking up the sun, you will be arrested for indecent exposure, charged with a first degree misdemeanor and come sliding into court just under the sex offender cut off.
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Retired Supreme Court Justice Major Harding wrote in a letter to Florida State University quarterback Jameis Winston’s attorney Sunday that Winston was cleared of all code of conduct allegations against him. In Justice Harding’s letter it was cited that, “[i]n sum, the preponderance of the evidence has not shown that you (Winston) are responsible for any of the charge violations of the Code.” For a little over the past year Jameis Winston has been the focus of an alleged sexual assault against a former FSU student after the two left together from local bar Potbelly’s. In spite of Leon County State Attorney Willie Meggs declining to file criminal charges against Winston, FSU went forward with their own Title IX investigation, electing to allow the option of one of three retired Florida Supreme Court Justices to sit as the finder of fact. In using this process, both Winston’s attorney and the accuser’s attorney could veto one of the three judges each. After the vetoes were made from both parties the ultimate selection was Justice Major Harding, a man without ties to Florida State. Justice Harding is a distinguished and respected jurist having sat on the Florida Supreme Court from 1991 to 2002, with two years of his tenure as Chief Justice.

In Winston’s code of conduct review, the threshold allegation was whether it could be proven by a preponderance of evidence that Jameis Winston violated Florida State University Student Conduct Code 6C2R-3.004(1)(e)1 for an allegation of sexual misconduct. “Preponderance of the evidence” under Florida State University code, means that the evidence, as a whole, shows that the fact sought to be proved is more probable than not. 6C2R-3.004(1)(d)8. In other words, if Winston’s accuser could have shown by just a tip of the scale or by 50.1% of the evidence, that Winston violated the code of conduct, he would have been found to be in violation and could have faced expulsion from the institution. Unlike the “beyond a reasonable doubt” standard in a criminal case, preponderance of the evidence is a considerably easier standard to meet for the party that bears the burden of proof. As a Tampa criminal attorney when I defend someone accused of a crime, I have the benefit of defending an individual to a standard that in order for them to be convicted, the State must show there is no other reasonable explanation for what occurred than the specific facts they allege. When one thinks of beyond a reasonable doubt in the inverse it is a little easier to see just how difficult the standard is to meet assuming the jury holds strongly to the jury instruction’s dictate.
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Oh Florida, here we go again. Generally it’s the average Joes and Janes making the news for crazy allegations, now it’s the cops. 32-year-old Broward County Sheriff’s Deputy Ted Arboleda is accused of foregoing a legitimate arrest of a woman in exchange for her offer of oral sex. Arboleda is said to have made routine contact with the woman at a local gas station where he found her to be without a valid driver’s license, in possession of marijuana, and in possession of an unlabeled bottle of prescription medication, all while on felony probation. According to news reports, initially the woman tried to bargain with the good deputy with cash in exchange for him to look the other way, though that wasn’t convincing. Allegedly, in the course of the course of the skillful negotiation it was decided that not only would Arboleda not arrest the woman, he would drive her home where the oral sex is alleged to have occurred. According to news reports, Arboleda told the woman this was his first time in this kind of rodeo and that he ultimately, “could not believe he agreed” to what he’d done and told her not to tell anyone.

Yes, Ted. Good strategy. Tell the lady with the drug problem who just agreed to tune you up (allegedly) to keep quiet. No doubt she is the one you can rely upon to keep your dirty little secret. In all seriousness, Ted Arboleda is entitled to the same deference anyone else is when accused of a criminal offense. He is entitled to be considered innocent until proven guilty, just as his accuser was when she was initially charged with her crimes. The reality of this situation is that it could come down to a he said she said incident, unless there is video footage, reliable eyewitness testimony, some type of GPS tracking system on his car, or Deputy Arboleda ignorantly elected to talk to the police. If none of that exists, if it comes down to his word against hers, chances are his word will prevail and I believe that’s how many criminal attorneys would handle this case, at least in part.
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Heisman Trophy candidate Jameis Winston finds himself in both a National Title race and also subject to an allegation that he sexually assaulted a Florida State University student in December of 2012. Since this story broke it has been at the forefront of the college football world and has consumed the minds of many Florida State fans. With attention, rumors and allegations are bred, some conceivable, others absurd. The outcome will shake out how it may and at the end of the day, the truth must be found so justice is served. With what is known as of the time of writing this blog, there doesn’t seem to be enough evidence to make a filing decision. If that’s the case, it’s hard to imagine charges being filed.

Everyone that knows me, knows well that I am a Florida State Alum and a huge Florida State football fan. My Saturdays revolve around it, plain and simple. I love my Noles to a fault and I’m a cranky fan. I get made fun of for living and dying on every play and like the Chicago Bear superfans I have had numerous tiny heart attacks caused by my team. No doubt I’m at a baker’s dozen by now. That being said, before you start barking that this blog will be biased, even if Mr. Winston were a Gator or Hurricane, my opinion on this investigation would be the same. Considering the evidence known at the time of this blog (This is important folks. I’m writing based on what’s known at the time of posting this blog) it doesn’t seem to me there is a case against Mr. Winston for criminal sexual assault.

At the time of this blog there is nothing more than an allegation that Jameis Winston sexually assaulted a young woman in Tallahassee. The journey from allegation to proof beyond and to the exclusion of any and all reasonable doubt is long. State attorney Willie Meggs has said, and he’s correct, that there must be a “reasonable likelihood of conviction” to bring a criminal charge. In spite of the fact that Winston’s DNA was found on the property of the alleged victim, more is needed to show that a sexual battery occurred. Necessarily under FS 794.011(5), Florida’s sexual battery statute as it would apply to this case, there has to be some showing that there was no valid consent. As a general rule, proof of no consent is offered by showing that a rape kit was performed and that there is medical opinion of injury to the victim, amongst other items of evidence. If this exists it could be damning for Winston. His DNA, coupled with medical opinion that the alleged victim’s body was injured would be a mountain to overcome for the even the best criminal attorney. Conversely, if the victim chose not to seek medical attention or if a medical evaluation reflected no signs of injury, this would benefit Winston. If an eyewitness saw the sex act this would be relevant for either side, depending on the observations. Was there a sexual relationship between the parties before and after the alleged incident and what was the nature of that relationship? If the answer is yes, and that relationship continued after the alleged act, this fact would help Winston as it could be argued that no one who was actually assaulted would go back to the person that victimized him or her. Following with the idea of a relationship between the two, are there pictures of them together after the alleged incident? If so, this damages the State’s case.
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Authored by Paul J. Wallin of Wallin & Klarich | A Law Corporation

If you’ve been accused of rape in California, and you live in Tampa, Florida you need to be aware that the state of California will likely extradite you so that you can be tried for this very serious crime. This means California can take the legal action necessary to physically return you to California. (This is called extradition). Therefore, speaking to an attorney experienced in rape charges in California can make the difference in your case. At Wallin & Klarich we have over 30 years of experience defending clients accused of rape.

What is rape under California Penal Code 261?

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Pennsylvania woman, Jessica Lynn Weitkamp, 28, is alleged to have entered a Wal- Mart in Pennsylvania with no regard of the standard “no shirt, no shoes, no service” sign. It is alleged that Ms. Weitkamp entered the Wal-Mart, nude, and casually strolled through the store’s aisles, yelling at interested onlookers and breaking $346 worth of merchandise in the process. We’ve all borne witness to many of nature’s miracles when perusing the inventory at our local Wal-Mart stores. From cutting edge fashion to the latest trends in automotive technology and design, Wal-Mart is a treasure trove of information worthy of the rise of even the most scrutinizing eyebrow. Ms. Weitkamp, if she in fact performed these alleged deeds, simplified what can normally be seen at Wally World and in doing so, ramped up the intensity levels far beyond the norm. Despite her alleged actions likely being completely accepted for those members of the “People of Wal-Mart” society, Officer Friendlies throughout our great nation may not be of the same opinion. Evidently and unfortunately for Jessie Lynn, these Pennsylvania officers did not agree with her artful expression.

In all honesty when I saw this headline I immediately thought she would need a Tampa criminal attorney, as no doubt this had to happen in a nearby village in Florida. While that could generally be a reasonable assumption, this incident is far from here geographically. What if we used our imaginations as if this did occur in Florida? What would Ms. Weitkamp be charged with? Several things.
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A Jacksonville Beach, Florida mother pled guilty in Duval County Circuit Court on January 30th to four counts of Child Neglect. Dalina Nicholas, 36, is accused of repeatedly selling sex with her 6-year-old daughter to drug abusing and homeless men in exchange for drugs and money to support her own drug habit. Nicholas, originally facing a sexual battery charge has agreed to testify against those men alleged to have sexually abused her daughter in exchange for that sexual battery charge being dropped. Sexual battery under Florida Statute 794.011 as alleged against the other defendants and likely as initially alleged against Nicholas is a Capital Felony with the requirement to register as a Sexual Predator. Generally Capital felonies are punishable by death. However, in Capital cases for rape of a woman or child not involving death, execution has been ruled to be unconstitutional by the United States Supreme Court through their decisions in Coker v. Georgia, 433 U.S. 584 (1977) and Kennedy v. Louisiana, 554 U.S. 407 (2008). As you can imagine, despite the terrible allegations against her, Nicholas has dodged a certain life sentence in her agreement to cooperate with the State. In all candor I believe this is a deal any Tampa criminal lawyer would advise his client to enter into should the implicating facts be overwhelming.
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