Stephen G. Cobb - Florida Criminal Defense Lawyer

Traveling To Meet A Minor For Unlawful Purposes FSS 847


Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Good evening and welcome to Florida Criminal Law TV. My name is Stephen Cobb, I am your host. And we are going through a series of videos, that’s a little bit different from our normal half-hour television format, in order to answer questions about common defenses to sex offense crimes. And now, we are going to talk about one that has really exploded in the past few years and usually comes packaged with the child pornography and felonious use of communication devices. And this is traveling to meet a minor for unlawful purposes. And that is 847.0135(4)(a) if you look it up in the Florida statutes online.

Now, traveling to meet a minor is, as I mentioned, packaged with other charges. And I am going to, again, give you a real-life example with anonymized information and the false names because I have to protect people’s privacy; you would not want me traveling on using your name if it were you or someone you love. So, we are going to talk about the case of Mr. Smith.

Mr. Smith was in the military, boy scout actually before the military. He was a boy scout who became an eagle scout, went to church on a regular basis, participated in the church in a foreign jurisdiction in other states. So, at 18, he enrolls in the United States military, already with this track record of success. Then, he tries to go into special forces, which is very hard to get into. You have heard the stories and if you have not, look it up online. The things those men and women go through are incredible feats of endurance he went through it and did very well.

In fact, when the war in Iraq and Afghanistan broke out and then the aftermath of war where there was still fighting and insurgency etc., he was a go-to guy who was not just a member of the special forces, he became a leader as a non-commissioned officer. And so, during this time, he was in multiple blast radiuses. And I do not think you need me to tell you what a blast radius is but here is an example of the kinds of things he would tell me when he could tell me stuff because a lot of the stuff that he was involved in was, “If I tell you, you have to kill you” kind of stuff. And I tell all of my military clients upfront if it is going to be in that category, I do not need to know about it. Do not tell me. So, what he could tell me was that they were going after a bad guy, a firefight broke out, he was climbing up a building – and this is just one incident – and sure enough someone fired a rocket-propelled grenade at him. It hit right next to him; fortunately, it did not explode when it hit the building. It penetrated the building and blew him off of the building with the debris landing on him and everything. He had a concussion, he was dazed, he was still able to rescue one of his teammates although he was barely conscious and really out of it and he was able to drag that person to safety, the chopper came in and got them out.

Unfortunately, he had many such incidents to the point that after 9 years in the military, he was medically discharged. While he was in the local area near one of the military installations in northwest Florida, he was online and for some reason was chatting up a cop thinking it was a 14-year old girl sending inappropriate pictures and arranging a meeting. Well, he was arrested. He was charged by information of indictment with four different counts.

Now, this did not look good from the word go. Most cases do not when they first come in and people often think “Why should I bother? I do not have any defenses”, well, we put together a litigation team, which is my default when I am dealing with high stakes felonies and increasingly, more and more cases because quite frankly, it is more effective. I would love to tell you that I have a cape on and I am a super lawyer but such marketing nonsense is precisely that, nonsense.

So, we put a team together and as we were doing one of our internal staffings, an issue came up on a motion to dismiss under rule 3.190C4. Now, a C4 motion basically states that there are no additional facts and dispute and the undisputed facts show that a count or all of the counts or some of the counts should be dismissed because there is no criminal law violation. What my colleague found, I did not find it, I will be very candid and upfront, that is why we have teams because I like that. I do not feel anything bad about it. What is right is more important than who is right. The client is who matters, not our egos, they are the most unimportant things in the world frankly. What matters is what is right by the client and what is right is a motion to dismiss was filed that was denied at the hearing, yet it was extremely helpful because the judge ruled that while now, at this juncture for a C4 motion to dismiss pre-trial, I cannot dismiss these two counts or these two counts of the four but the state attorney must, prior to selecting a jury, decide is it these two counts or these two counts because it is not going to be all four. And sure enough, that resulted in the dismissal of two of the counts. It did not result in the dismissal of all of them but why is that so important?

Well, it is important because it affected plea bargaining and got rid of two counts and that reduced the exposure under Florida Rule of Criminal Procedure 3.992A, which codifies 921’s list of different offenses, what is known as the offense severity ranking chart. There are 10 different categories and each category scores a certain number of points above a certain number of points, any sentence must be a state prison sentence. Now, with the two that were left as a result of plea bargaining, our client still faced prison. So, what do we do? Do we enter a plea of no context and just take the deal or do we enter a plea of no contest and do the same old type of sentencing hearing the judge has heard 40,000 times? No. We used the brain defense. And what is the brain defense? It is a strategy of mitigation that Kevin Davis’s book profiles in chapter 14 where he actually flew down to watch this sentencing hearing we did. The client entered a plea of no context. It was a capped plea. What is that? Well, think of it as a capped plea means that it cannot go up to the maximum, that there is an agreement that this amount of time will be the maximum that this particular individual can suffer. And so, they are not looking at the risk of the maximum, the judge does not buy the defense’s argument.

So, under 3.992A, the points calculated, he would have to serve a certain number of months in the state prison that he would be designated a sexual offender and have to do sex offender probation to follow. That was what the state wanted and they want that in just about every case that is a sex offense. Instead, what happened was we did the sentencing hearing, I called in a physician who is a skilled brain imaging psychiatrist with Amen Clinics. I highly recommend if you want to learn more about the brain defense, get Kevin Davis’s The Brain Defense, also take a look at amenclinics.com. And if you want to see pictures of the criminal brain as opposed to some goofy show on TV, I think it is called the Criminal Mind, the reality is you can actually see pictures — you ever wonder about a school shooter, what is going on in their head? Do you want to see what their brain looks like? Go to brainplace.com. And you will see the brain images from one of the very first school shooters in United States history. And what you will see is mind-blowing.

In fact, what brain imaging has taught me, I have sent more people for brain imaging than any other lawyer in criminal law in the world for SPECT brain imaging. No one is even close, and not one person has come back with a normal set of brain images and neither did this particular client, Mr. Smith. We had three things to show under the 3.992B specialized depaturegram. Number one, we had to show that there was a physical disability or mental illness. Secondly, we had to show that he was in need of specialized treatment, not general treatment. And third, we had to show that he was willing to go treatment. Those are the three elements you have to show before the judge can lawfully depart from the point-based instructions of 3.992A in Florida. So, sure enough, we went to the hearing and what the state is normally used to is they ask for a mental health expert who does no imaging, the defense asks for a mental health expert who does no imaging. If the court wants, they can appoint a third one who does no imaging. And now, I want you to visualize that it is 1890, the x-ray machine has been invented, nobody is using it in court and experts like that are called de-testify.

And the first one comes up for one side and says, “I felt the arm of the patient hauled and he was faking”. And then, the next expert comes in and says, “I felt the arm, he hauled and I believe the arm is broken”. And so, then the jury or the judge, depending on the scenario back in the day, would make a finding as to whether or not the arm was broken. Now, in today’s world, if your child falls off the roof of a car, children are not supposed to play on the roof of a car, we all know that but if you are a parent, you know the kids do, they do sometimes whether or not they should even if they are told not to, even if they are trained not to. If your 12-year old falls off the roof of a car and you take that 12-year old to the doctor and the doctor says, “We are just going to put a red cast on a right leg”, and you are going, “Sir or Ma’am, I have known my child since birth and the area between the wrist and the elbow is not normally shaped like a V, why would you put a cast on the right leg?” “Oh, well we put a right cast on the right leg for everybody who says they have a broken bone because we do not need imaging”. Right there, that sums up what is wrong with psychiatry in the United States right now.

The technology for brain imaging has been around for a long time but we have these entities who do not like brain imaging. Perhaps you have heard of them. When you try to use your semi-worthless insurance known as The Insurance Companies, they were ambushed by the x-ray machine, not with brain imaging, no, there has to be a special need for it. And then, when there is a special need for it, it is usually some outdated technology like a CT scan and then you talk to the person who performed it and they go, “No, I did not find a thing”. Of course, they did not find a thing. It is a wrong technology for goodness sakes. I am a layperson, I have figured that out after doing brain imaging since 2005. Anybody can figure this out, just read a good book on this subject. My personal favorite, by the way, is Change Your Brain, Change Your Life by Dr. Daniel Amen.

So, moving right along, we did brain imaging instead of the battle of the experts because just as no x-ray physician is going to walk into a courtroom and say that an obviously broken tibia is not broken or the healthy tibia is broken, that is just not going to happen. Their carrier, their credibility, it is out of the window instantaneously the moment they put a lie like that on the stand. Well, with brain imaging, you can see it right there, there is no way you can get around it. So, we were easily able to show that this person had injuries to his brain, possible genetic things, and then the question came up because there is an exclusion under 3.992B for specialized treatment and that is, substance abuse or alcohol.

If a case involves substance abuse or alcohol, most lawyers in my field run like crazy from specialized treatment because they do not think they can use it because drugs and alcohol are involved in a case. No, if you are watching this and you are a member of the bar and you do criminal defense, yes, you can, you can use it, get brain images because the doctor can say, “This, that or this may be the result of toxic substances including alcoholic drugs but that, that and that cannot be the result of toxic substances including alcohol or drugs”, and that question came up in this hearing.

So, we established that he had a mental health disorder and a physical disability of the brain. Secondly, the reports we get from Amen Clinics Inc. fill a three-ring binder. And I mean they are like this big. Half of it is diagnostics; the other half is treatment plan. And it is not, “Do you go to the institution or not, do you take medicine or not”, it is, “I do not know”. Well, how could it possibly be I do not know, simply because the failure path for treating mental health disorders or substance abuse disorders, which is beyond the scope of this video segment, is to simply say one size fits all. Everybody gets the same treatment. That does not work. And in this particular case, he had a wide variety of treatment modalities, types of counseling, nutritional supplementation, hormone testing and adjusting, targeted this, targeted that, eye motion, desensitization, which they use a lot with returning veterans who have post-traumatic stress disorder, which is unfortunately too common in our culture. And so, he required specialized treatment. So, we have gotten 2 out of the 3.

Third one, so you are going to follow the plan or at the moment, he gets sentenced and gets what he wants or is he going to blow it off? No. One, he had been compliant during the months leading up to that sentencing hearing, which was bitterly contested. And two, it was very simple. I said, “Judge, why don’t you make – given the state’s concern that he will not follow through with it although he has followed through with it for months – that a special condition of probation and not put extra work on the probation officer; quite the opposite, make him show proof that he is going to the doctor, that he is getting medication refills, that he is going to the types of counseling, that he is taking the proper nutritional supplements, whatever it is”. And so, sure enough, we used a defense, which was not a full defense, in order to reduce exposure. And then, by the time we got to the sentencing hearing, we used the brain defense.

Now, he was still found to be a sexual offender, he is not at risk of being involuntarily committed. He still had to do sex offender probation but you know what, he is able to function in a society, he has a job, he has a girlfriend and he is a productive member of society. Locking him up, as the state wanted to do, and by the way, he scored a 1 on a common sex offender recidivism risk test where 1 is the lowest it goes and 10 is the max, he scored a 1. He is no risk of committing any further offenses, his brain has been treated. And instead of the taxpayers spending $55 a day, making his brain worse and making it more likely that he would be higher on that risk of re-offending scale, we have actually solved the problem of crime one person at a time.

So, if you or someone you love is accused of a sex offense, we may want to take a look at what we call the brain defense. And if you would like to know more about the brain defense generally, I would recommend The Brain Defense by Kevin Davis, Change Your Brain, Change Your Life by Dr. Daniel Amen as well as different articles I have read. And if you would like to talk about one of these types of cases with me, feel free to let me know and I will answer all of your questions.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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Stephen G. Cobb, Esq.

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