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Since the beginning of time merchants of services or goods have been quick to toss a patron out of their premises and ask him or her to never come back if said person runs afoul of their rules. It’s common sense for most to know that if you get kicked out of a brick and mortar establishment there is a good chance that you will be “trespassed,” thereby giving you notice that if you come back, you could get arrested. As time passes and technology progresses, the law will have to evolve with it. To “trespass” in the time of our forefathers meant no more than to physically be where they aren’t invited after some form of notice. Back in those days the act of trespassing could upon one’s person, chattel, or physical property. Fast forward to now. With all things tech, a website becomes an interesting new forum for debate on whether or not one can “trespass” on the property of another.

I will preface this blog in that as a low tech criminal lawyer I know about as much about “tech” as I do brain surgery. I do understand that large and common websites like Craigslist can ban an IP range or individual IP address from coming to their site in much the same sense that an establishment can ban an individual or group of individuals from coming to their place of business. In my tiny tech brain I can only imagine a drunken bar patron being kicked out of a big bar in the sky and sent through some kind of multicolored warp tube into never-never land… I digress. So what happens when a person or group that has been trespassed or blocked from a website attempts to come back, using a different or cloaked IP address? As decided in the Craigslist v. 3Taps case, evidently now, at least in the opinion of one Federal District Court Judge, a person who does this runs afoul of the Federal Computer Fraud and Abuse Act (“Act”)! A potential Federal charge? This act is codified at 18 USC 1030. Judge Breyer opines that the Act was violated as applied to the 3Taps case in that 3Taps did intentionally access a computer without authorization and retrieved information from a Craigslist computer that was protected. In rendering his opinion, Judge Breyer compared a website trespass to trespass on private property in saying, “The law of trespass on private property provides a useful, if imperfect analogy. Store owners open their doors to the public, but occasionally find it necessary to ban disruptive individuals from the premises. That trespass law has enforced those bans with criminal penalties has not, in the brick and mortar context, resulted in the doomsday scenarios predicted by 3Taps in the internet context.”
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Ask any Tampa Federal Criminal Lawyer how they feel about Federal drug sentencing and I have little doubt the response you receive would be a groan and a look of disgust. Federal drug sentencing, for whatever popular and illusory reason the Federal Sentencing Commission chooses to hang their hat on, has been and is outrageous. For every crime there must necessarily be some kind of punishment otherwise the system is useless and we can cue anarchy. However, when one with little criminal history and no real ties to a cartel or gang takes a shot to make five times his yearly wage for a noble albeit illegal reason and ultimately is sentenced to a 10 year minimum mandatory prison term, have we really achieved anything? Should a drug sentence really be higher than a crime of violence or a sex crime against a minor? It doesn’t pass the smell test but it happens all the time. Title 21 of the Federal Criminal code details minimum mandatory sentences and it has been a leverage point of Federal Prosecutors since its inception.

Not only can a defendant be charged with a violation of Title 21 that calls for a mandatory minimum prison sentence, in certain instances the defendant’s sentence potential or mandatory minimum be increased because of a criminal history to make a minimum mandatory completely exorbitant. If the US Attorney’s office pops your man with a nice little 851 enhancement you are now staring down the barrel of a potential of a 20 year minimum mandatory or mandatory life sentence depending on the number of prior drug felonies he has. If the defendant was facing a 5 year minimum mandatory he is now looking at 10 and if there is no minimum mandatory, his statutory maximum increases. You can run but you can’t hide from the 851… All for one prior drug felony. Granted this enhancement is not automatic but it is wholly discretionary for the Federal Prosecutor. Depending on which Prosecutor is driving the bus, you could be in for a bumpy ass ride. This enhancement isn’t even inclusive of a Career Offender enhancement, and animal that has been criticized as not being based on empirical data by the Supreme Court in Kimbrough v. US, 552 U.S. 85, 109-110 (2007). When one is saddled with both an 851 and career offender enhancement his Federal criminal lawyer will earn a few more gray hairs.
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Drag racing in the Tampa area has been alive and well in for a long time. Mix testosterone with high octane gasoline and a lot of horsepower and you have a recipe for adrenaline. As is so often the case with any hobby that may push the envelope on safety, this particular brand of fun is highly regulated when legal and illegal when not performed in the proper venue. Unfortunately, those who participate in road racing in an illegal venue are doing it not with a specific purpose to break the law or cause damage or physical harm to anyone, but rather to enjoy the fun that a high speed race provides. Consequently, for as much as racers want to enjoy their racing, the local police want to catch the racers and put a stop to their actions. Though at first blush one would say, “what is the harm in a drag race?” there can be serious legal consequences effected by laws put in place to prevent the damage that can precipitate from racing. After a local police officer was injured when his car was hit by a racer, WTSP Channel 10 News’ Melanie Michael interviewed Tampa criminal lawyer Jason Mayberry about illegal road racing. As a complement to that interview we’ll provide our audience with the consequences that attach when one pleas to a racing on the highway charge.

As a general rule racing on the highway charges are considered to be first degree misdemeanors carrying a possible jail penalty of 11 months, 29 days in jail. To be convicted of this charge the State must prove beyond a reasonable doubt that the defendant:

A. drove a motor vehicle in
OR
B. participated / coordinated / facilitated / collected monies at the location of
OR
C. knowingly rode as a passenger in
OR
D. purposefully caused moving traffic to slow or stop for
a race OR a drag race or acceleration contest OR a speed competition or contest OR a test of physical endurance OR an exhibition of speed OR an attempt to make a speed record on a highway OR road OR parking lot.
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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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Two men are facing a Federal criminal complaint out of the Northern District of New York for allegedly hatching a plot to create an X-Ray gun capable to shooting lethal doses of X-Ray radiation. Alleged members of the Ku Klux Klan, Glendon Scott Crawford, 49, of Galway, NY and his buddy Eric J. Feight, 54, of Hudson, NY have been arrested and charged with the Federal crime of conspiracy to provide material support to terrorists in violation of 18 USC 2339A. If convicted of the charges, Mr. Scott and Mr. Feight face up to 15 years in the Federal Bureau of Prisons and a large fine. The essence of the criminal complaint is that these two “gentlemen” schemed to create a mobile, remotely operated, radiation emitting device capable of killing targets from afar with a mega dose of radiation. Their alleged intent was to blast unknowing victims with said radiation, only to have their victims fall ill days later and eventually die. Despite their dedicated intentions, at no time was their cartoon ray gun operable or even capable of fulfilling their double secret squirrel plot according to authorities.

Is the KKK really involved? If so it looks as if at least some of them have now graduated from wearing white uniforms that look like Casper’s redneck friend Crisper and hurting people, to generally screaming at rallies in cities, to now plotting attacks with hi tech laser tag guns? Can anyone fill me in here? I’m proud to admit that I don’t knowingly know anyone in the KKK so I can’t attest to the intelligence level of the group as a whole or any of them as individuals, but this seems to me like they’re grasping at straws a bit. Ray guns? Seriously? Dumb, dadumb, dumb, dumb… Whatever bobs their bobber I guess, but there will likely be consequences to thinking and behaving like fools.
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A man in South Carolina was pushed off his moped and subsequently beaten with his own prosthetic leg Monday afternoon. Joel Parrish, 35, of Myrtle Beach is alleged to have performed this ridiculous and heinous act without any reason being offered or provocation known. Parrish may as well give up on his dream of being Myrtle Beach’s citizen of the year and his chances at earning a key to the city are likely compromised after he inflicted head injuries to the man on the moped. It’s doubtful his partner in the crime, who is alleged to have held down the man on the moped, will be asked to join the Big Brothers, Big Sisters chapter of Myrtle Beach either. Both men are alleged to have pushed the man off of his moped only to punch and kick him while ultimately beating him with his prosthetic leg when it came off in the fracas. According to a police report it is recommended that the particular South Carolina State Attorney’s Office charge Parrish with Assault and Battery of the 2nd Degree.

I’m not a South Carolina lawyer so I have no earthly idea what the gravity of the charges are against Mr. Parrish in his home State. I’ve handled enough cases to know that if you’re accused of this kind of thing in the Bay area you better get a good Tampa criminal attorney retained sooner rather than later. If this type of thing happened in the Tampa area I could see someone being charged with battery or in the alternative possibly aggravated battery and very likely criminal mischief to whatever level.
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71 year old Pennsylvania man William Moody had a bad day. Just this past Friday Moody became enraged when a good samaritan parked in his driveway so as to render aid to a victim of a nearby accident. According to a report, the samaritan only blocked Moody in for 10 minutes, a 10 minute period just before Moody intended on going to eat. Needless to say, Mr. Moody became “hangry” and proceeded scream at both the good Samaritan and officers who attempted to calm him down. Despite their efforts, Officers ended up being pushed and ultimately had to dodge a good looking set of dentures launched their way. Upon officers attempting to arrest the very moody Moody, it is alleged that he feigned a heart attack only to have officers remove the handcuffs. They were repaid with more abuse, ultimately culminating with Moody throwing his false teeth at them when they arrived at the police station.

Clearly somebody should have given this man a Snickers. Had that occurred it is very likely none of this would have happened as we all know we aren’t ourselves when we’re hungry! Instead, Moody will be charged with a slew of violence and resisting arrest charges in his home State of Pennsylvania. Because Florida is awesome, this type of thing happens here with regularity. In Florida, under this fact pattern, Moody would be charged at minimum with battery on a law enforcement officer and resisting arrest with violence. Battery on a law enforcement officer is generally a third degree felony, punishable by up to five years in prison. Generally speaking, a battery on a law enforcement officer is nothing more than an actual and intentional touching of another against their will or an intentional touching that causes harm and the victim is known to be a law enforcement officer. A Tampa criminal attorney can often mount a mitigating defense that the accused had no idea the victim was an officer. If successful, the battery on a law enforcement officer charge would likely go away, resulting in a total acquittal or a conviction for a misdemeanor count of simple battery. Unfortunately for Mr. Moody, if these officers were wearing a uniform, were in a marked car, or identified themselves as officers, his goose is likely cooked. From the appearance of the dentures Mr. Moody could be lucky he isn’t being charged with assault with a deadly weapon or an act of terrorism due to the funk on his chops. Time will tell on that…
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Tampa man John Andrew Welden, 26, is facing a Federal charge in the middle district of Florida for allegedly tricking his girlfriend into ingesting the abortion pill cytotec. Welden, whose father is an OB/GYN doctor was arrested May 15th and is specifically alleged to have forged a prescription form and disguised the cytotec as Amoxicillin. Welden’s girlfriend and alleged victim, Remee Jo Lee had no health insurance at the time she found out she was pregnant and sought the care of Welden’s father for a sonogram. John Andrew Welden is alleged to have lied to Lee and told her his father diagnosed her with an infection and administered the cytotec disguised as Amoxicillin to combat the alleged infection without her knowledge and consent. Welden is further alleged to have held himself out as being a medical doctor and counseled Lee when the cytotec reacted to Lee’s body, causing heavy cramping and bleeding. It was only when Lee took the remaining pills to a pharmacist when she learned that what she was ingesting was not Amoxicillin at all.

Welden was indicted on Federal criminal charges via a two count indictment, true bill returned May 14, 2013 alleging that he violated 18 USC 1365(a) by tampering with consumer products resulting in serious bodily injury to an individual and 18 USC 1841 and 1111(a) for causing death to an unborn child the same as murder. For purposes of figuring out what Welden is looking at with respect to a criminal sentence, we have to strip down the allegations. Simply put, Welden is accused of murder, as per 18 USC 1841(a)(C) his punishment shall be guided by 18 USC 1111, the Federal murder statute. Because murder is the most serious allegation and the charges will be “grouped” as they arose out of the same incident, it will govern the sentence possibilities. 18 USC 1111(a) calls for death or life imprisonment if a defendant is found guilty of first-degree murder. First Degree Murder, as it applies to this case, is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing…. Because 18 USC 1841 specifically interjects a murder punishment for the death of an unborn child if the conduct is applicable, an unborn child under this situation, and per this statutory scheme, is considered a human being. No doubt the United States Attorney’s Office will seek a first degree murder conviction against Welden and they may well get it if they can show that the cytotec can be considered “poison” or that his actions were willful, deliberate, malicious, and premeditated. If the United States Attorney’s Office can put together the paper trail against Welden and maintain the alleged victim’s credibility, Welden’s Federal criminal lawyer may have his or her work cut out for them.
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If you’ve previously read our blog, you’ll know that it is an effort to provide an interesting read on funny or hot button topics from the perspective of a Tampa criminal lawyer. Our hope is that we can bring some knowledge on the law while also giving a perspective of how a case is viewed from our side of the fence. Today I’ll break from that trend as there is nothing funny about the acts of Dzhokhar Tsarnaev and his older brother. These individuals robbed our Country and one of our finest cities of a sense of security while taking with that the lives and quality of life of innocent bystanders supporting something so pure as the challenge of the Boston Marathon. Those of us that practice Federal criminal law stand before our Judges every month in an effort to introduce them to an individual as opposed to a case number. We squeeze every bit of good in a person onto a sentencing memorandum in the hope that we can shave off a fraction of the person’s sentence. As a general rule, within each of our clients there is some good and it can be argued that though the individual may be before a particular judge on a particular day, the act for which they are there is not the sum total of who the person is. With the freshness of this massacre as it currently stands, it would be tough to make that argument here. Some will demand Tsarnaev’s head on a stake, some will beg for mercy due to his age. Both are entitled to their opinion. This great country and its resolve is to thank for the ability to own your opinion.

As it stands on the date of this blog, Tsarnaev has been charged by criminal complaint in Federal Court. Rest assured a Grand Jury will be empaneled on this case and they will provide an indictment and this case will move forward based on that. As for now, Tsarnaev is charged via complaint with “Use of a Weapon of Mass Destruction” under 18 USC 2332(a) and “Malicious Destruction of Property Resulting in Death” under 18 USC 844(i). Someone died as a result of the deeds of these brothers. As with any Federal Case one of the first steps in sentence calculation is to take a look at the Federal Guidelines to get a rough idea as to where the potential sentence may stand. Going in order, the charge of “Use of a Weapon of Mass Destruction” is most likely to be guided under Federal Guideline 2M6.1. Immediately because a little boy died, this guideline could call for a cross reference with Guideline 2A1.1 for first degree murder as the death was most definitely caused intentionally or knowingly. The base offense level for that, regardless of criminal history is 43, which equates to life. However, under 2M6.1(c)(1) because a higher offense level could be built using 2M6.1 by taking the base offense level of 42 and adding 4 levels for death, the first degree murder cross reference doesn’t happen. Generically, for Tsarnaev’s use of a weapon of mass destruction, he’s looking at a potential total offense level of 46 which would equate to life. As for the “Malicious Destruction of Property Resulting in Death” the applicable guideline is 2K1.4. Again there calls for a first degree murder cross reference under 2A1.1, this time applicable as that guideline is higher at 43.
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