Understanding Federal Child Pornography Cases
- Basic Definitions
- Specific Offenses
- Sentencing Issues
- The Feds Seized My Computer – What Do I Do Now?
Federal Child Pornography Law contains several definitions that are important to understand and some that do not mean what they sound like. Here are the important ones that appear in the Federal Child Pornography Statutes:
“Sexually Explicit Conduct.” As most people know, a Justice once said, “I know pornography when I see it.” If your case involves depictions that include obvious sex acts, this section applies and you need read no further. However, if your case involves nudist, solo, selfie, bathing or other borderline images, you should be aware of this factor.
“Knowingly.” This requires that Defendant have “knowledge” that the person depicted in the image is both underage and engaged in “sexually explicit conduct.” In most cases, the images themselves are enough for the inference that a person who viewed them would have knowledge of their contraband nature. However, in some cases, the “knowingly” requirement can provide a defense.
“Affecting interstate Commerce.” Many Defendants mistakenly get caught up in thinking that this phrase can be helpful because they never left the state. That is not the case. Jurisdiction in Federal Court is based on “commerce” and is virtually always present. (Though I believe a constitutional mistake was made in the 1800's, this is firmly the established law). Example: A picture taken on a camera which contained parts that were made out of state is sufficient - as is any use of the mail, a phone or a computer. Ignore this.
“Visual Depiction.” This can be a still image or a video in any format, including the digital bytes that can be reconstructed into the image. It has also been held to include the display on a computer screen (just web surfing) even if the defendant does not know that “surfing” stores files on his computer automatically (Internet Cache).
- It is easier to think of the Federal Child Pornography charges as 3 categories rather than as the separate counts. Below is a chart which summarizes potential Federal child pornography charges
- IMPORTANT: “Receipt”, which is functionally identical to “Possession,” is in the same more serious category as “Distribution.” This unusual structure has serious implications for negotiation and sentencing.
- Specific Child Pornography Offenses
|5 yrs.||20 Yrs,||18UCS2252 (1-3)|
|15 yrs.||30 Yrs.||18 U.S.C. 2251|
- Negotiation. Since most child pornography cases being prosecuted in Federal Court fall into all three categories, negotiation to obtain the Possession count is crucial.
- No Mandatory Minimum.
- Eligibility for probation, conditions of confinement or split sentence. (All unlikely however).
- Reductions under the sentencing guidelines.
- The record of conviction. "Possession" is less evil sounding than "Distribution" or "Advertising"
- Guidelines. Like all Federal sentencing, this is controlled by the Federal Sentencing Guidelines Manual. "
- Points are given for different offense factors, including:
- Number of Images
- Pre-Pubescent Images
- S&M Images
- Use of a Computer
- vulnerable Victim
- Suppression Motion. This is a challenge to the search and seizure of the items containing the Child Pornography, usually a compute, cell phone or external hard drive. It is usually based on a lack of probable cause or intentional omission from the search warrant request.
- Accidental Downloading. It is true that most child pornography cases begin with accidental downloading as many file sharing programs will deliver child porn even if the search did not request it. If the activity went no further and searches were not conducted using child por specific search terms, this may be a defense.
- Someone else did it, this difficult defense is based on the idea that someone else at the location could have done the downloading. It requires the use of a computer forensic expert.
- No Sexually explicit conduct in the images. If the images are of nude children not engaged in obvious sexual activity, the images need to be examined carefully to determine if they are illegal.
- No actual child used in the production of the Images. This rare defense is based on a Supreme Court Case that requires that an actual child be used in the production of the images. Again, the images have to be carefully analyzed by an expert to determine if this defense is available.
The Problem: You are sitting at home expecting to get ready for the day. Instead, in walk a dozen FBI/ICE agents who show you a search warrant for the premises. What do you do now? Based on our vast experience handling Child Pornography investigations as private Federal Defense Attorneys, we lay out below the suggested steps to take when met with this situation.
What To Do When Faced With A Search Warrant For Your Home.
- Do Not Consent to Voluntary Interviews Without Your Lawyer: You have the right to remain silent whether or not you are read your rights. DO NOT SPEAK with law enforcement. That is the job for your attorney. No amount of immediate explanation by you is going to make law enforcement end their search. Your words only help them decide whether or not to arrest you at that time. However, do provide identifying information and say “I want my lawyer.”
- Review the Warrant: Politely ask to see the warrant and pay attention to the address to confirm it is indeed your address. Politely ask for a copy of the warrant. It is unlikely you will be given a copy but it never hurts to ask.
- Ask for Inventory: At the completion of the search ask for a copy of the inventory of the property seized. You do not necessarily have a tight to the inventory at that time so if denied do not become upset or aggressive with law enforcement.
- Ask for the name and contact information of the Agent in Charge: This will aid your attorney in knowing who to call to get answers for you.
- Call your Lawyer: Immediately seek representation to guide you in the process and to protect and serve as a buffer between you and law enforcement in obtaining answers to the questions you will undoubtedly have.
If you face Child Pornography charges, contact a firm with a longstanding reputation for legal excellence, aggressive representation, honesty, integrity and extraordinary client services. Contact The Criminal Defense Group.
Recent Child Pornography Case Results
August 2010 Facing: Mandatory Minimum 5 Years for Importation of Child Pornography
Result: NO JAIL TIME, Straight Probation!
June 2010 Facing: Mandatory Minimum 5 Years for Child Pornography Distribution
Result: Plea to Obscenity Charge with NO REGISTRATION & 6 Months Home Detention!
The two motions we put online for you to see (above) show some of what a good criminal defense attorney does for their clients. Through our experience, research and excellent writing skills, we showed how certain evidence that the police were going to use against our clients was not allowed, because the police had done something wrong, or because the evidence was otherwise "tainted", and could not be used in court. We were successful in both of those cases.