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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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Nine times out of ten if a person is indicted in a Federal criminal case, they will most likely be charged in a conspiracy.  Generically, a conspiracy is nothing more than an agreement to commit some type of criminal act.  18 U.S.C. 371 is the most general form of conspiracy and requires the following to be proven in the 11th Circuit:

  1. The existence of an agreement to achieve and unlawful objective;
  2. A defendant’s knowing and voluntary participation in the conspiracy;
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Being arrested doesn’t have to mean you will spend a significant amount of time in jail after your arrest. The bail bond system allows someone who has been arrested for a crime to be released from jail pending their trial. This important facet of the criminal justice system ensures that you can continue to work, as well as consult with your criminal attorney regarding your defense strategy. The bail bond system often requires the use of money or property as collateral to assure that you will appear in court on your scheduled trial date.

How Bail Bonds are Set

In most state courts the amount of the bond paid for bail is set by a schedule related to an administrative order signed by the chief judge in the applicable jurisdiction.  Each offense has a predetermined bail amount, based in part on the severity of crime, that must be posted prior to release from jail.  Examples of many crimes that will have a schedule bond attached are Grand Theft, Petit Theft, Simple Possession of Narcotics, or Disorderly Conduct.  Under these schedules and in nearly every state court, bail is not available to people who are viewed as flight risks or when they are determined to pose a danger to the community.

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Darth Vader of Death Star, Space, 45 years old, was indicted last week in the Middle District of Florida for allegedly violating the RICO act, Conspiracy, Committing Acts of Terrorism Transcending National Boundaries, Murder, loitering and prowling, and finally, wearing a mask on a public way. Mr. Vader has long been thought to be a vital cog in the “Dark Side” organization but has to date avoided capture or criminal charge, instead going unscathed while various ranking storm trooper underlings faced a variety of criminal charges including trespass and drunk and disorderly conduct. While the Federal Bureau of Investigation and the United States Attorney’s Office have remained tight-lipped with respect to the evidence against Vader, many believe this could be it for the Dark Lord.

While it may seem to many a slam-dunk to earn a conviction against Mr. Vader, Mr. Vader’s legal counsel doesn’t think so. When asked, Mr. Vader’s lead defense counsel, Tampa criminal attorney Jason Mayberry indicated that while it may indeed be more difficult to defend against the loitering and prowling charge, it may prove to be an uphill battle in proving the terrorism charge, given a lack of eyewitnesses to Mr. Vader himself ordering or committing any act of terrorism under 18 USC 2332b. With respect to a potential conspiracy charge under 18 USC 371, Mayberry points out that there are no known remaining witnesses to attest that there was agreement to achieve an unlawful objective, that Mr. Vader knowingly and voluntarily participated in the conspiracy, and that Mr. Vader committed an overt act in furtherance of the conspiracy. United States v. Brenson, 104 F.3d 1267 (11th Cir. 1997); United States v. Suba, 132 F.3d 662 (11th Cir. 1998); United States v. Hansen, 262 F3d 1217 (11th Cir. 2001).

As to a murder charge for the death of Obi-Wan “Ben” Kenobi, Mayberry cites a claim for self-defense within one’s home. According to Mayberry, “it appears clear that Mr. Kenobi entered Mr. Vader’s home with the intent to use deadly force against him. It was Mr. Kenobi who was committing the crime of burglary against Mr. Vader, who was simply using deadly force to defend himself and his friends against the deadly force planned against him by Mr. Kenobi and his lightsaber. Furthermore, there appears to be an argument for a motion to dismiss for lack of jurisdiction in the middle district.” To Mayberry’s point, there are no known treaties between the United States and the Death Star, nor does there appear to be any enabling statutes, akin to the United States Coast Guard patrolling international waters for narcotics, in effect. A quick review of past police reports find that Obi-Wan Kenobi does have a history of brutally attacking Darth Vader leading to severe injury.

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The St. Louis Cardinals baseball team is under investigation by the FBI and Unites States Attorney’s Office in Houston, Texas for allegedly hacking an Astros player database. The New York Times reports that FBI and Department of Justice officials have evidence that Cardinals officials tapped into a database created by a current Astros exec and former Cardinals exec. According to the Times report, the database contained information on player statistics, scouting information, and internal discussions about players, trades, and other proprietary information. Thus far, both the Cardinals and Astros have been served with subpoenas but no formal charges have been returned against the Cardinals officials responsible for the breach. It is believed that Cardinals officials “gained access to the Astros’ database by using a list of passwords associated with Astros general manager Jeff Luhnow dating to his tenure with the Cardinals from 2003 until he left for Houston after the 2011 season,” according to ESPN reports. Surprisingly, these databases were allegedly accessed using this information from the homes of the Cardinal executives involved.

While this incident is being compared immediately to the Spygate scandal involving the alleged videotaping by the New England Patriots of opponents’ practices, under the surface there is potential that this incident could have far more severe implications through the federal criminal justice system. 18 U.S.C. 1030(a)(4) makes it a federal crime for anyone to knowingly and with intent to defraud, access a protected computer without authorization…. and by means of such conduct further the intended fraud and obtain anything of value. One potential issue that could be raised by a federal criminal lawyer is the element requiring something of “value.” In essence, the question would be is there a value that can be said to be attached to a baseball team’s database compiling information important to the game as it’s played on the field? I would think a federal prosecutor would answer in the affirmative and would consider the information accessed to be congruent to a major corporation’s trade secret. 18 U.S.C. 1839 defines a trade secret, in relevant part, as business information, tangible or intangible, that the owner has taken a reasonable measure to keep secret, and the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by the public. Bringing this all together, under this theory I believe the federal prosecutor would argue that this information is a trade secret, value of which is in the potential for the Astros to properly scout and prepare for their opponents in order to win and ultimately, very likely be more profitable. Essentially, if there is any way the information accessed could contribute to value, it could very likely be considered a trade secret. Conversely, I think a Federal criminal attorney could argue to a jury that there is no way to assign a value to the information as the leap from the information accessed to actual profitability of the team is too far to make it a legitimate trade secret. In other words, what was accessed was not the recipe for Coca Cola or Chic Fil A’s delicious chicken sandwiches. 18 U.S.C. 1030(a)(5)(c) criminalizes the intentional access of a protected computer without authorization, and as a result of such conduct, causes damage and loss. I believe the same argument for both sides would apply here.

What about the good old sweeping charge of wire fraud? Generically, government must prove beyond a reasonable doubt that a defendant (1) used either mail or wire communications in the foreseeable furtherance, (2) of a scheme to defraud, (3) involving a material deception, (4) with the intent to deprive another of, (5) either property or honest services. Bingo! Yet again, the federal prosecutor’s best friend makes a conviction a little easier.

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Want some terrible advice? Don’t break a car window to save a poor puppy about to overheat if you’re anywhere in the State of Georgia. Michael Hammons of Athens, Georgia, a desert storm veteran, is finding this out the hard way after breaking the window of a car he found with an overheating dog inside. According to several news reports, Hammons was walking through a parking lot when he noticed a Ford Mustang with a small Pomeranian mix inside. With no windows open and no air conditioning running, the dog was distressed and likely about to die according to a number of onlookers.  After Hammons broke the window to rescue the dog he was charged with trespass per the dog owners demand!

So, morally and ethically, the advice NOT to break the window is terrible and one would have to be a real son of a bitch to not save this little dog. It seems as though Georgia would prefer to have a number of dead dogs and sons of bitches roaming around in order to prevent their version of trespassing from being committed. As attorneys we can’t uphold our oath to the bar and advise one to break the law at the same time. To do one excludes the other. In this situation, that’s tough to do. So what happens now and what would happen to someone in Florida if they did this?

First and foremost, I’m hard pressed to think of an incident in Florida where someone has left their hound in a hot car where they weren’t prosecuted for animal cruelty if the dog was in distress or died. In Florida, plain jane animal cruelty is a first degree misdemeanor punishable by up to 11 months, 29 days in jail and is proven if it can be shown that someone carried an animal in or upon a vehicle in a cruel or inhumane manner. In a Florida summer with the windows up and the dog left in a car the person is probably toast. Unless you get a jury of sons of bitches, once they hear those facts you’re out regardless of how good your criminal attorney is. So what if you break the window like Mr. Hammons? In my book you’re a hero. That said, theoretically you could be charged with trespass to a conveyance (a car is a conveyance) if they can show you willfully entered the conveyance belonging to another without their permission. There is a thought that criminal mischief could be charged if it can be shown that you damaged the personal property of another in a willful and malicious capacity.

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Music producer and professional subject of controversy Suge Knight is back in hot water after being accused of a deadly hit and run in California. As so often is the case in a criminal trial, video of an alleged incident can be a crucial piece of evidence for the prosecution, defense, or both. In the video Knight appears to partially pull into a parking lot where he is confronted by a man known as Cle “Bone” Sloan. After what appears to be a scuffle, Knight backs his truck out of the parking lot and then accelerates forward, running over Sloan in addition to another man on the scene named Terry Carter. Sloan survived, Carter did not. Knight faces murder charges in California and the video of the incident may well have a significant impact on his trial.

While California law will vary from Florida, it is likely that Knight’s charges will be very similar to what he would face had his actions been committed in Florida. In addressing the most serious allegation only, Knight would likely be charged with second degree murder were his case situated in Florida. Second degree murder occurs when there is an unlawful killing of a human being when committed via act imminently dangerous to another with a depraved mind, lacking any real concern for human life but lacking the premeditation required for a first degree murder charge. While it is arguable the State could move forward on a first degree murder charge, it is unlikely premeditation was present. One could argue had premeditation been present, Knight would have just hit the individuals immediately upon his arrival at the scene rather than stop to speak. As to second degree murder, the charge will hinge on whether his actions in accelerating forward were done with a depraved mind, lacking a concern for human life.

So does the video lock the case down for the prosecution on a murder charge? Having dealt with similar issues, there is perhaps more to be told. No doubt Knight’s criminal attorney will point to Sloan appearing to attack Knight when the truck initially stopped at the scene. This would support an initial self-defense argument in that Knight was not the instigator of the physical contact. As we can see Knight’s truck then backs up, only to lunge forward, hitting the men. After some elapsed time a man runs over to Sloan and appears to take something from him. If it can be shown that this was a weapon (specifically a gun), Knight’s actions could be argued to have been in self-defense. Even if the item taken isn’t recovered, there is still room for argument by the defense. So what do we make of the car that travelled down the road Knight initially backed into, almost immediately after Knight’s truck lunged forward? The prosecutor will argue that this is evidence of a clear path allowing for Knight’s safe escape from a compromised situation. Was it really though? Knight’s criminal lawyer may argue that the car was accelerating away from the scene after being behind Knight. Depending on the actions of those in the car, Knight may have feared for his life in attempting to navigate his way from the scene in an alternate capacity than what he did. Regardless of the outcome of the trial, in my opinion this video will be a focal point of the trial and will be used by both the prosecutor and Knight’s criminal defense team. Time will tell as to who the jury agrees with.

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Happy Veteran’s Day to all that have served our great country. Those that are still serving, thank you too. In the United States we have the freedom to designate specific days to give thanks to those individuals that have made a real impact on the development and continued growth of our country. No other day is more necessary than Veteran’s Day. It’s really not enough though. One day a year to go out of our way to thank those that dodged bullets and lost their best friends in battle so that we could go to our favorite bar and watch football or eat at the restaurant of our choosing. Nothing is more disproportionate than that.

I have a friend who has been shot at in the most dangerous city in the world in Iraq and another who flies soldiers in and out of combat zones. My cousin is a former Army Ranger seeing active duty in the Middle East. Many of my generation’s grandfathers or fathers fought bravely in World War 2 or Vietnam. Because these guys did and do this, I can safely get in my Jeep and drive to the beach and enjoy the day. They don’t talk about it and they don’t expect to be thanked. Yet no one should be thanked more. Quite honestly this is hard for me to wrap my mind around. Not only have they risked their lives for our lives and freedoms, they continue to stand in line to do so. They do this all the while realizing that when they go, or when they went, they could be kissing their wife holding their baby for the last time.
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