Category: Sex Crimes

Online Dog chat leads to murder and taking of unborn fetus

There are certain acts that must take place before something is a federal crime. An act that takes place entirely within State boundaries is not a federal crime, but a State crime. A physical assault with the use of hands is an example. This is why most murder cases are not federal crimes, but is instead State crimes.

The crime must involve an act that goes beyond the state lines in order to be prosecuted Federally. This includes federal lands that are within States. Tribal lands or federal military posts are examples. A crime committed on these lands is within federal jurisdiction because these are federal lands and not state lands.

An easy way to remember what other crimes might be a federal crime is to remember the Commerce Clause, Article I, Section 8 of the United States Constitution. If interstate commerce, the crossing over state lines, is used to commit the crime, then a Federal Crime has been committed. This involves many acts that you may not initially think about. Acts that involved the use of Interstate Highways, guns – which are usually made with parts from different states, ammunition – usually mad in a state different than where the gun was made, or made with parts from outside the state, mail fraud, are all examples of items used in a crime that may make for a federal offense.

The failure to involve something that crosses states lines, or on federal lands, is why many murder cases are not federal crimes. However, in the case United States v. Montgomery, discussed below, there was a kidnapping that then crossed state lines and death resulted as an act of the kidnapping across state lines. This is an example of a murder that can be prosecuted federally.

Some of you may have heard about this case, or watched reenactments on television shows. This case involves two ladies that first met at a dog show and continued discussions at an online discussion board about their breed of dog. Be forewarned, the story is a little gruesome.

UNITED STATES v. MONTGOMERY (4-5-2011)

Defendant Montgomery was convicted and sentenced to death for kidnapping, transport of kidnapping victim to another state, and death resulting from kidnapping. Defendant Montgomery killed a pregnant woman and then cut the fetus from her womb so she could claim to have given birth.

The Federal District Court held that the death resulted from the kidnapping of a person, although the mother’s death preceded the removal from the womb. The death resulted from the kidnapping, which occurred beginning with the birth and taking of the new born, and the murder was committed in furtherance of the intended kidnapping.

Here is a link to the entire opinion for some light and joyful reading: http://media.ca8.uscourts.gov/opndir/11/04/081780P.pdf

Cell Phone Use Increases Prison Sentence By 28 Months

The Federal Court considers many factors when determining an appropriate sentence for a Defendant after conviction. One factor the Courts consider are the sentencing guidelines. These Guidelines can be found in the Federal Sentencing Guidelines Manual. These Guidelines were derived at after studies were completed on how people were sentenced across the nation and other factors. One original purpose of the guidelines was an attempt to eliminate disparity in sentences amongst Defendants convicted of similar crimes.

The Guidelines begin by establishing a base level offense and a criminal history category. The criminal history category is determined by your criminal past. Even State misdemeanor offenses can have a significant effect on this category.

The offense level begins with the base level. This is the category the crime convicted of fits into. From this base level offense, the level may increase or decrease based on several factors. Some of these factors are not necessarily in the specific language of the actual offense for which a conviction occurred. The Court may consider such things as whether the victim is considered vulnerable under the Guidlelines, If the offense is based on the race or religion of the victim, whether the Defendant is to be considered a manager or leader in the offense, and many other considerations. Below is a case where the use of a cell phone to commit the offense enhanced the level to a point where the Defendant will serve an extra 28 months in prison for using the cell phone.

United States v. Neil Kramer
App. from W.D. Mo.

Facts Summary: Defendant Kramer pled guilty to transporting a minor in interstate commerce
with the intent to engage in criminal sexual activity with her. Mr. Kramer acknowledged that he used his cellular telephone to make voice calls and send text messages to the “victim” for a 6 month period. The cell phone did not have internet capabilities. At sentencing, the District Court concluded that the phone was a “computer” and applied a two point enhancement for its use to facilitate the offense
pursuant to USSG §2G1.3(b)(3). The Court sentenced Mr. Kramer to 168 months. The District Court acknowledged that had it not been for the computer enhancement, Mr. Kramer would have been sentenced to 140 months.

Mr. Kramer appealed arguing the enhancement was procedural error
because a cell phone used could only to make voice calls and engage in text messages. Therefore this phone should not be considered a “computer.”

Issues:

(1) The Court may consider a cell phones a computer

a. Defendant Kramer argued:

1. The District Court incorrectly interpreted term “computer” to
include basic cell phone.

2. The sentencing enhancement should apply only if device is used
to access the internet.

b. The 8th Circuit Federal Court of Appeals ruled:

1. USSG 2G1.3(b)(3) provides a 2 level enhancement for use of a
computer to “persuade, induce, entice, coerce or facilitate the travel of
the minor to engage in prohibited sexual conduct.”

2. A “computer” has meaning given in 18 USC §1030(e)(1), which:

a. Means any electronic, magnetic, optical arithmetic,
or storage functions and includes any data storage facility or
communications facility directly related to or
operating in conjunction with such device.

b. However, the definition does not include an automated
typewriter or typesetter, a portable hand held calculator or other similar
device.

3. Based upon this definition, the Court decided there is nothing in statutory definition that excludes devices because they lack connection to the Internet. Therefore, cellular phones are not excluded from the definition of a computer and therefore the 2 level sentencing enhancement applies.

a. The Court noted that a cell phone makes use of an
electronic data processor and the same is true when it is used to send text messages

Defend yourself against sex crime allegations

In today’s world there is much controversy surrounding sexual abuse and sex crimes. A person accused may find that even if acquitted they are looked upon with suspicion and fear. The allegation itself can carry with significant stigma and social repercussions. Too often, prosecutors charge out criminal sexual conduct cases based solely on the allegations presented. Little physical evidence is often presented. Though it may seem the case is weak, an aggressive defense is necessary. That may include hiring experts to review witness interviews for suggestive language and improper techniques.

Sex crimes widely vary in type and severity; consequences surrounding these alleged crimes will also determine what charges are filed and what potential penalties suspects will face. The Flanagan Law Office represents clients against all types of sex offenses, including:

  • Sexual assault and abuse
  • Aggravated sexual assault
  • Child molestation
  • Internet solicitation
  • Statutory rape
  • Indecent exposure
  • Prostitution or solicitation
  • Child pornography

Here are some helpful steps to remember if you’re ever accused of sexual abuse or a sex crime:

1. Do not give any statements to law enforcement and do not discuss the case with any other people until you have retained legal counsel.

2. Hire an experienced criminal defense lawyer.

3. Write down the names of potential helpful witnesses to aid in your case.

4. After hiring a lawyer, make written notes regarding the allegations. Share these notes with you lawyer.

If you have been accused or arrested for a sex crime in Minnesota, you already know how devastating these charges can be for you and your life.

Contact the Flanagan Law Office, in Fridley, Minnesota, to speak with an experienced attorney about your situation and to learn more information about your rights. Call to schedule a free initial consultation at 763-786-5324 or 651-200-3484.