Felonious Use Of An Electronic Communication Device In Sex Offense Traveling Cases

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.

My name is Stephen G. Cobb, Attorney at law and you are watching Florida Criminal Law TV as we go through a series of different types of sex offense cases.

Now, we are going to talk about a type of case, which on a surface, does not sound like a sex offense case but it usually is. That is felonious use of a communication device, an electronic communication device. Well, on the surface of it, that does not sound like a sex crime. Let me explain how it is. Someone takes what is colloquially known as a dick-pic and sends it to another person. In my world, usually, the law enforcement officer that they are chatting up online and these often come packaged with those traveling to meet a minor for unlawful purposes cases under 8470135, usually 4(a) as we discussed earlier. The communication device issue is one of those creative things that the legislature came up with and it is also one of those charges where you often find, if you are looking for it and you are careful, a double jeopardy issue by the different charges that are laid out because it is not uncommon to have traveled to meet a minor with felonious use of a communication device, an electronic communication device and child pornography. I mean we usually find those in the same set of charges, not always but quite often.

And with felonious use of a communication device, you can see how the legislature went out of their way to manufacture a crime. In other words, the crime is already going on but we are going to make this an extra part of it in order to increase punishment. This is really critical to understand. If you have been following what happened with the Cosby trial and the Me-Too movement, you have to understand that culturally, while sex offense cases of all types have been difficult to defend, now we have this increased plethora of different types of charges like the felonious use of electronic communication device in furtherance of a felony. A manufactured charge that on the surface has nothing to do with a sex offense case. The reality is simply this. When it comes to all these types of charges in a post-Cosby re-trial world where he was convicted, we can see the impact of the Me-Too movement. Number one, you have not been able to get a fair trial in a sex offense case for a long time. Number two, it is worse now than before the whole Me-Too movement. And number three, this makes courtroom psychology more important than ever before.

Now, at this point, you may be thinking, “Cobb, I thought you were talking about defenses”, yes, I am. For example, what am I wearing? I am wearing a suit. Grey suit, white shirt, dark tie, solid color. Now, in the courtroom, I normally wear navy or charcoal grey as a suit, long-sleeved white shirt and quite often, a red, white and blue tie. Why would I do that? What does that have to do with the defense? As a criminal defendant, you should wear and you should do certain things and you should not wear and not do other things. For example, you probably do not know this but you get the highest acquittal rate when you have, for example, a male defendant in a navy suit, same white shirt like this one, conservative tie like this one, and no facial hair whatsoever and not a skin-head look but short-hair, shorter than mine is fine, longer, long hair probably not. Why? Because jury selection through running mock trials over and over again has taught us that if you take that white male defendant and you put him in any other color but navy as a suit, if you allow that white male defendant, the testing shows, have any kind of facial hair, “Oh, I have real neatly trimmed beard”, I have heard this, “Oh, my mustache is really neat”, does not matter. Do not wear it. I do not care if you have had it for 40 years. Why? Because the conviction rate goes up 28% in testing when they do things like that with different actors with the same set of facts. They make these cases so factually specific and so fifty-fifty, you would never find a case that close in a real life.

And so, with these different types of sex offense cases including the use of a communication device, you want to make sure that your dress is not hurting you. And dressed correctly, it makes an unconscious impact on the prosecutor, the judge and the jury. Haven’t you ever met somebody and you thought to yourself, “I really like this person”, but you cannot put your finger on it. Or have you met somebody and go, “Oh, I really do not like that person”, and you cannot really put your finger on it. It is probably something they said, a behavior mannerism or their clothing that threw you off and you do not even know that your mind has been coded that way.

Now, more specifically to use of a two-way communication device, there are a number of different technical defenses that can be mounted where you usually have to hire an expert. It could be someone else use the two-way communication device, that is actually an issue in a case I have right now, multiple people had access to communication devices that were seized by the law enforcement and now they have a problem. They believe that these communication devices were used to commit a specific type of sex offense but they cannot identify who was using the device since it was shared by multiple people.

Now, I want you to imagine that we are having a hearing on, say, an issue related to that under rule 3.190C4, C1 through 3 do not really matter. They are things that never happen and I have never seen a motion to dismiss granted because the state violated the double-jeopardy issue or that the state violated an immunity agreement and I have certainly never seen the governor pardon someone before a trial. So, those three things do not matter. But let’s say we have a C4 motion where there is no factual dispute, being dressed correctly while sitting mutely at the defense table not saying a word will make a difference. Because if you have facial hair, if you have the wrong color on, whatever you do, whatever you do, do not wear black, male or female, do not wear black. That is the jail and prison color. The numbers are even higher than the 28%. By being dressed correctly while technical defenses are being mounted where factual defenses such as somebody else was using the device not me, that is a factual defense, technical devices, this could not have happened that way because technically, this particular device has an automatic downloader that surfs the net. It looks like it was a form of malware, it went to porn sites and downloaded improper images, then it accessed the contacts and started sending them, I mean those are technical things you have to have. An expert goes, “This is where it is located in memory, this is what it means”, they have to break down complex computer technology and explain it to either the judge or the jury depending on the type of defense while you are sitting there in the courtroom and while your family and friends are there. They need to be properly attired for the court as well. It is critically important that while these technical defenses to a charge like that because that is technical defense charge if ever there was one, it is critically important that you are dressed correctly because that is a key component of your defense not only to this charge but all types of sexual offenses.

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.