Philadelphia Criminal Defense Blog

Zak Goldstein 1/16/20 Zak Goldstein 1/16/20

Third Circuit Court of Appeals: Mistake of Age is Not a Defense to Charges of Transporting a Minor to Engage in Prostitution

The United States Third Circuit Court of Appeals has decided the case of United States v. Tyson, holding that a mistake-of-age defense is not applicable to the charges of transporting a minor to engage in prostitution or producing child pornography. The decision also holds that knowledge of the victim’s age is not required to secure convictions under either of these statutes. This decision is not surprising given that the majority of circuit courts have held that mistake of age or knowledge that a victim is underage is a defense to the aforementioned charges.

United States v. Tyson

In August 2017, the defendant contacted a seventeen-year-old female on Facebook to engage her in prostitution. After communicating for several days via Facebook and text messages, the defendant traveled from Pennsylvania to New York City. The defendant picked up the complainant and her friend and brought them to Harrisburg, Pennsylvania. He then rented several rooms at a hotel in New Cumberland, Pennsylvania between August 15 and August 20, 2017. Phone records reveal that several individuals from Harrisburg contacted the complainant to engage in commercial sexual activity. On August 22, 2017, after a relative of the defendant brought the victim to a Quality Inn in New Cumberland, FBI agents and local law enforcement recovered her during a sting operation. Investigators then interviewed her and reviewed her phone. After they reviewed her phone, they found a video of her performing oral sex on the defendant.

On October 18, 2017, the defendant was indicted for knowingly transporting a minor to engage in prostitution and producing child pornography. Before trial, the Government filed a motion in limine to prohibit the defendant from eliciting evidence to establish mistake of age and from asserting mistake of age as an affirmative defense. The District Court granted the motion. The Court reasoned that evidence of mistake of age is irrelevant because the statutes that the defendant was charged under do not require proof of a defendant’s knowledge that the victim was a minor.

After this ruling, the defendant entered into a conditional plea agreement. According to the terms of the plea agreement, Government agreed to recommend to the District Court that the sentences be served concurrently for a total of 180 months’ imprisonment. The agreement also preserved the defendant’s right to appeal the District Court’s order granting the Government’s motion in limine. On December 19, 2018, the District Court sentenced the defendant to 180 months’ imprisonment for each count, to be served concurrently. The defendant then filed a notice of appeal with this court challenging the District Court’s order.

What is a Motion in Limine?

A motion in limine is a motion that can be filed by either the prosecution or the defense. The purpose of this motion is to have the judge make a ruling on a particular piece of evidence or argument that the party intends to make outside the presence of the jury. In criminal trials, it is common for defendants to file these motions to keep out particular pieces of evidence. There are strategic reasons for filing these motions. In jury trials, a defense attorney may not want to be seen objecting to particular pieces of evidence because it can be interpreted by the jury that they are attempting to hide something. As such, motions in limine are useful because a defense attorney is able to pre-emptively “object” to this evidence and keep it out before it is heard by the jury. It also allows both sides to know what evidence will be admissible at trial before the trial starts.

Motions in limine can also be used to preclude a particular party from arguing certain defenses. In the instant case, the Government filed a motion in limine to prevent the defense from arguing mistake of age defense. However, defendants can use motions in limines to prevent the prosecutor from making certain arguments. For example, prosecutors frequently like to argue witness intimidation even when there is no evidence to support this. As such, a defense attorney can file a motion in limine to preclude the prosecutor from making this argument when there is no such evidence to support this claim. This is just one example. Therefore, defense attorneys should anticipate what evidence the prosecutor intends to introduce at trial so they can file motions in limine to keep out harmful evidence and arguments against their clients. In state court, it is relatively uncommon for the prosecution to make motions in limine prior to trial. In federal court, however, prosecutors routinely file motions in limine in an attempt to undercut potential defense arguments. Therefore, it is important if you are facing federal charges to retain an attorney who has the experience to fight these motions.

The Third Circuit’s Ruling

The Third Circuit denied the defendant’s appeal. The Court analyzed the relevant statutes and other appellate decisions that have addressed this issue, including United States Supreme Court decisions. In its analysis, the Third Circuit found that the majority of other circuit court decisions have held that that it is not necessary for a defendant to know that the age of a victim to convict him of either transportation of a minor to engage in prostitution or production of child pornography. The Third Circuit found that by not specifically requiring knowledge of the victim’s age in the statutory language, Congress eliminated an offender’s opportunity to prey on children without consequence by claiming ignorance of the victim’s age. Further, the Third Circuit found that any potential prejudice to defendants was outweighed by the Government’s compelling interest in protecting children. Because knowing a victim’s age is not relevant to convicting a defendant under these statutes, a defendant cannot use the mistake of age defense. Consequently, the defendant will not get a new trial, and he will be forced to serve his sentence.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 11/22/19 Zak Goldstein 11/22/19

PA Supreme Court: Forcing a Defendant to Reveal Password Violates 5th Amendment

Can the Police Force You to Reveal Your Computer Password in Pennsylvania?

The Pennsylvania Supreme Court decided the case of Commonwealth v. Davis, holding that the government cannot force you to provide the password to your computer without violating the Fifth Amendment even where the government can prove that you knew the password and it was your computer or electronic device. This decision represents a tremendous victory for privacy rights and Fifth Amendment rights and will likely have an impact on cases involving computer-related offenses such as possession of child pornography and even financial crimes. It is, however, important to remember that this decision does not prevent the police from searching your computer with consent or after obtaining a search warrant or from breaking into it themselves if they are able to do so. It also may not apply to federal agents. Nonetheless, you should remember that if the police are asking you for your password, you should ask to speak with a lawyer before giving it to them.

Commonwealth v. Davis

On July 14, 2014, agents of the Office of Attorney General (“OAG”) discovered that a computer at an identified internet protocol (“IP”) address that was registered with Comcast repeatedly utilized a peer-to-peer file sharing network, eMule, to share child pornography. Specifically, agents used a computer with software designed to make a one-to-one connection with the computer at the aforementioned IP address and downloaded a file, later confirmed to contain illegal pornography, which was saved to the OAG computer. Based upon its transfer and review of the file, the OAG obtained a court order to compel Comcast to provide subscriber information associated with the IP address. Comcast disclosed that the defendant was the subscriber and had registered to the account to his address.

The OAG then applied for, received, and executed a search warrant at the defendant’s apartment. One of the OAG agents informed the defendant that he was not under arrest, but that the search involved an investigation of child pornography. The defendant was then read his Miranda warnings and waived his Miranda rights. The defendant acknowledged that he was the sole user of a Dell computer. He admitted to having prior illegal pornography convictions, but denied the computer contained any illegal pornographic images. The defendant then declined to answer additional questions without a lawyer. Subsequent examination of the computer revealed that the hard drive had been “wiped,” which resulted in the removing of data entirely or rendering it unreadable. Prosecutors did not file charges at this time.

Some time later, a different OAG agent identified a different illegal video that was shared with a different IP address utilizing the eMule server. Another administrative subpoena was sent to Comcast regarding this IP address. Again, the results of the subpoena produced the defendant’s name and contact information. On October 20, 2015, the OAG executed another search warrant at the defendant’s residence. At the defendant’s apartment, the agents discovered a single computer, an HP Envy 700 desktop. After being Mirandized, the defendant informed the agents that he lived alone, that he was the sole user of the computer, and that he used hardwired internet services which are password protected. The defendant gave a statement that he previously watched pornography on the computer, that he believed to be legal; he previously had been arrested for child pornography; and that child pornography was legal in other countries so he did not understand why it was illegal in the United States. The defendant was then subsequently arrested.

While in transit to his arraignment, the defendant spoke openly about watching various pornographic movies, indicating that he particularly liked watching 10, 11, 12, and 13-year olds. An OAG agent then requested that the defendant then provide him with the password to the computer and the defendant responded “it’s 64 characters and why would I give that to you? We both know what’s on there. It’s only going to hurt me. No [expletive] way I’m going to give it to you.” While in the holding cell, the agents continued to inquire about the password, but the defendant would not tell them it.

The defendant was subsequently charged with two counts of disseminating child pornography and two counts of criminal use of a communication facility. On December 17, 2015, the Commonwealth filed a pre-trial motion to compel the defendant to divulge the computer password. The defendant responded by invoking his right against self-incrimination. A hearing was held, and the trial court granted the Commonwealth’s motion to compel. Specifically, the trial court relied upon the “foregone conclusion” exception to the Fifth Amendment privilege against self-incrimination and ordered the defendant to supply the Commonwealth with any passwords used to access the computer within 30 days. The defendant filed an interlocutory appeal.

The Superior Court’s Decision

The Superior Court affirmed the trial court’s decision. The Superior Court explained that the Fifth Amendment right against self-incrimination is not violated when the information communicated to the government by way of a compelled act of production is a foregone conclusion. The court reasoned that the foregone conclusion exception provides that an act of production does not involve testimonial communication where the facts conveyed already are known to the government. The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court, and the Court agreed to hear the case. The question for the Pennsylvania Supreme Court was: “May [the defendant] be compelled to disclose orally the memorized password to a computer over his invocation of privilege under the Fifth Amendment to the Constitution of the United States, and Article I, Section 9 of the Pennsylvania Constitution?”

What is the Fifth Amendment?

The Fifth Amendment of the United States Constitution provides that “no person...shall be compelled in any criminal case to be a witness against himself.” This privilege not only applies to a defendant in a criminal trial, but in any proceeding, civil or criminal, formal or informal, where the answers might incriminate the speaker in future criminal proceedings. Appellate courts have held that the privilege does not protect a suspect from being compelled to produce “real” or physical evidence. Thus, if the government knows that you have paperwork in your house that could implicate you in financial crimes, the government may still be able to compel you to produce that paperwork despite the fact that producing it incriminates you.

Instead, the privilege only protects an accused from being compelled to testify against himself, or otherwise provide the government with evidence that is testimonial or communicative in nature. To invoke the Fifth Amendment privilege against the forced provision of information, a defendant must show (1) that the evidence is self-incriminating; 2) the evidence is compelled; and 3) the evidence is testimonial in nature. Returning to the paperwork example, the government may not be able to compel you to produce paperwork that it does not really know about because the act of production admits that the paperwork is yours and therefore is testimonial.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ rulings and held that a defendant cannot be forced to provide his password when he asserts his Fifth Amendment rights. Specifically, the Pennsylvania Supreme Court found that the disclosure of a password is testimonial in nature and thus is entitled to Fifth Amendment protections.

In its decision, the Court made a distinction between physical production and testimonial production. Specifically, when the government compels a physical act, such production is not testimonial and the Fifth Amendment protections do not apply. However, an act of production may be testimonial when the act expresses some explicit or implicit statement of the fact that certain materials exist, are in the defendant’s custody or control, or are authentic. The crux of whether an act of production is testimonial is whether the government is forcing the defendant to use the “contents of his own mind” in explicitly or implicitly communicating a fact. Further, the Court held that the “foregone conclusion” exception as articulated by the United States Supreme Court did not apply to passwords and therefore was not applicable to the instant case. As such, the defendant will not be forced to provide the Commonwealth with his password, and they will not be able to use that information against him in his trial unless they can break into the computer on their own.

Should I give the police my password if they ask for it?

It is extremely important to remember that this case dealt with the police asking for a password after a court had ordered the defendant to provide it. In any other circumstance, it would be clear that the defendant did not have to give the police his password or speak with them at all. Instead, if you are under investigation or facing charges and police are asking you questions or asking for passwords, you should immediately ask to speak with an attorney prior to making a statement or helping them access your electronic devices.

Facing Criminal Charges? We Can Help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, VUFA, Possession with the Intent to Deliver, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 11/14/19 Zak Goldstein 11/14/19

PA Superior Court: Improper Admission of Hearsay Statement that Defendant Managed House of Prostitution Requires New Trial

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lu, holding that the trial court erred in allowing the Commonwealth to introduce a hearsay statement that the defendant, who was charged with promoting, managing, or supervising a house of prostitution, was the manager of the brothel. This case is important because it highlights the difference between inadmissible hearsay and statements which should not be admitted because they would violate a defendant’s right to confront his or her accusers under the confrontation clause.

The facts of Lu

In Lu, the defendant was charged with promoting, managing, or supervising a house of prostitution business under 18 Pa.C.S. Sec. 5902(b)(1) and criminal conspiracy. Police testified that they received a complaint from the FBI regarding certain Back Page postings that suggested that underage girls may be involved in prostitution. After conducting some investigation, a Philadelphia Police Officer called the number advertised on the Back Page posting. An Asian female voice answered the phone and arranged for a meeting with the officer at a certain address on Rhawn Street. The officer was told that the business would not open until 2 am. He was also told by text that there were four young girls and that he could do whatever he wanted for certain prices.

Later that night, the officer went to the address in plainclothes and rang the doorbell. The defendant opened the door and waved the officer into the foyer. The defendant spoke with the officer in English and led the officer into a room where three Asian women in lingerie were sitting on a sofa. The defendant then walked the officer closer to the girls and motioned with an open hand as if he were presenting them to the officer. The officer asked, “wow, I pick?” to which the girls laughed, but the defendant remained silent. The officer chose one of the women and went with her to the third floor of the building. The woman escorted him to a bedroom, put a bag of condoms and lubricant on the night table, and counted the money that the officer had brought with him. The woman explicitly agreed to have oral or vaginal sex with the officer for money, and the officer then asked who the defendant was. The woman told the officer that the defendant was the manager.

The officer then called for the arrest team. They entered the building, arrested the defendant, recovered various phones, and also found $2,900. The officer then identified himself as a police officer for the first time.

The criminal trial

The defendant was arrested and charged with the above defenses. Prior to trial, his defense attorney filed a motion in limine in the trial court asking the court to preclude the statement that the defendant was the manager because the woman who made the statement was not present in court to testify. The court found that the statement was admissible pursuant to a hearsay exception for statements made by the defendant’s co-conspirators during and in furtherance of the conspiracy. However, although the defense objected on confrontation grounds as well, the court did not provide any analysis for how the statement could be admissible under the confrontation clause. The defendant was convicted at trial and sentenced to 3-6 months’ incarceration. He appealed to the Superior Court.

The Appeal

On appeal, the defendant argued not only that the statement was hearsay, but also that its admission violated his right to confront the witnesses against him. The Superior Court ultimately agreed with the defendant that the statement should not have been admitted because the defendant did not have the opportunity to cross-examine the woman who made the statement. Whether or not the admission of a statement violates the Confrontation Clause generally depends on whether the statement is “testimonial.” Various appellate courts have held that statements are not testimonial when they are made to police or the first responders in order to obtain aid during an ongoing emergency. For this reason, the admission of 911 calls often does not violate the confrontation clause depending on the statement. However, when the statement is made not in response to an ongoing emergency but because police are simply investigating a potential crime, then the statement is typically considered testimonial and would be inadmissible at trial without the actual witness testifying. This is true even if the statement satisfies some exception to the rule against hearsay. Thus, a statement be admissible as non-hearsay or as a hearsay exception but still inadmissible under the confrontation clause.

The Superior Court reversed the defendant’s conviction. It found that the statement established that the defendant was the manager and that it was not made in response to any kind of ongoing emergency. Therefore, the statement was testimonial, and it should not have been admitted without the witness having to testify. Accordingly, the defendant will receive a new trial.

Facing criminal charges? We can help.

Zak Goldstein 11/10/19 Zak Goldstein 11/10/19

PA Superior Court: Adult Defendants Cannot Be Required to Register as Sex Offenders for Crimes Committed as Juveniles

The Pennsylvania Superior Court has decided the case of Commonwealth v. Haines, holding that adults may not be required to register as sex offenders when they are prosecuted and convicted for sex crimes that they committed while under the age of 18. This case is most likely to apply in situations where a defendant who was also a juvenile at the time is accused of committing some type of sex offense against another juvenile and the complainant then does not come forward until the defendant has become an adult. It is an important opinion which recognizes that children simply have not finished developing mentally prior to the age of 18 and so should not be punished as adults even when there is a delayed report of a sex offense.

The Facts of Haines

In Haines, the defendant pleaded guilty in 2017 to two counts of Indecent Assault of a person less than thirteen years of age. The charges related to incidents which occurred approximately ten years earlier when both the victims and the defendant were children. Specifically, the defendant was 14 or 15. The defendant pleaded guilty, but prior to sentencing, she moved to bar any sex offender registration requirement pursuant to the Supreme Court’s opinion in Commonwealth v. Muniz in which the Court held that SORNA registration is punitive.

The trial court denied the defendant’s motion and imposed sex offender registration requirements. The defendant appealed, arguing both that she could not be required to register under a statute which did not exist at the time of the offense as this would constitute an ex post facto violation and that the cruel and unusual punishment clause bars requiring an adult to register as a sex offender for a crime committed as a juvenile.

The Superior Court’s Opinion

The Superior Court agreed with the defendant on the juvenile issue. The court concluded that requiring an adult to register as a sex offender for crimes committed as a juvenile constitutes cruel and unusual punishment. The Court noted that lifetime registration for juveniles who commit sex crimes and are prosecuted while they are still juveniles has already been found unconstitutional by the Pennsylvania Supreme Court. It further noted that the United States Supreme Court has recognized that mandatory life imprisonment for juvenile defendants is also unconstitutional based on the inherent understanding of the fundamental differences between adults and children, children’s lack of maturity, and their undeveloped sense of responsibility leading to recklessness, impulsivity, and heedless risk-taking.

Synthesizing these two opinions, the Court quickly concluded that had the defendant been adjudicated delinquent at the time of the offense, she would not have been registered to register as a sex offender. The fact that she was subsequently convicted as an adult does not change the fact that she was a juvenile at the time of the commission of the offense. Therefore, she should not be held to an irrefutable presumption of re-offending even though she was not prosecuted until she had turned 26. Therefore, the Court reversed the portion of the sentence requiring the defendant to register as a sex offender.

This is an extremely important opinion as it is not uncommon for delayed reports of sex offenses to lead to prosecutions of adults for crimes committed when they were children. This opinion makes the collateral consequences of a conviction somewhat closer to what they would have been had there been a timely prosecution for the offense. As this case was decided by a three-judge panel of the Superior Court, it is very possible that the Court could grant en banc review or that the Pennsylvania Supreme Court could review the decision.