Federal child pornography charges are leveled against judges, politicians, doctors, and other well-regarded members of society more frequently than you would ever imagine. Federal child pornography cases are relatively easy for law enforcement to investigate: illegal images are traced to a user via his or her registered IP address, law enforcement agents obtain a search warrant, a search is executed, child pornography is found on the individual’s computer and, all too often, the person confesses, sometimes mistakenly trying to talk their way out of trouble by saying they did not intend to download the material or are not really interested in it.
Prosecutors in federal child pornography cases typically seeks high sentences — years and years in prison — for simple possession of illegal images. While many state cases end in probation or shorter jail terms, most federal child porn offenses carry mandatory minimum sentences. In order to avoid these terrible results, it is essential to do two things at the very beginning of a case: first, do not speak to the police, federal agents, or prosecutors; second, seek out a lawyer with experience handling child pornography cases, and follow the lawyer’s advice. Even if you are under investigation for federal child pornography charges, you are still presumed innocent and the case must be handled very carefully to avoid harsh probation restrictions, lengthy prison terms, and a lifetime of sex offender registration.
Federal law enforcement agencies are very aggressive hunting down child pornography on the Internet and trying to link it back to people possessing it. Virtually everything you do on the Internet is recorded somewhere; any interaction you have with another person or website can be turned over to law enforcement, or worse yet, might be with an undercover officer. If you get a call from U.S. Customs (Department of Homeland Security), a U.S. Postal Inspector, or the F.B.I. about your “internet use” it is imperative that you hire a lawyer before you respond. Typically, the feds try to get a confession and a search warrant before they bring a case to court. Sometimes, prosecution can be avoided if no statement and there is no probable cause for a search warrant.
First time offenders are often shocked by how harsh federal penalties for child pornography offenses are: prison time is the norm, even in cases of mere possession. Cases involving transmission of child pornography — for example, emailing a single image to an undercover agent — carry a mandatory minimum five-year sentence in federal prison. Maximum sentences range from 10 years to life imprisonment and Congress is constantly trying to raise them.
Federal law prohibits possession, receipt, distribution, copying, or advertising of images containing sexual depictions of minors. In addition to actual images of individuals under 18 years of age, sexual images even alleging or purporting to depict minors can also qualify as child pornography, whether or not the person depicted is a minor. A federal conviction for possession of child pornography can result in a sentence from 5 to 20 years imprisonment, and up to 40 years if the defendant has a prior conviction for possession of child pornography.
A similar federal sex crime involving children is sending obscene images to a minor, not necessarily of child pornography, is punishable by up to 10 years imprisonment under federal law, while a conviction for enticing a minor to produce child pornography (a.k.a. make or send pornographic images of themselves or another minor, such as “sexting” pictures) will result in a 15- to 30-year sentence. With a prior sex crime conviction, these sentences may be significantly longer. In addition to imprisonment, federal law provides for forfeiture of any computers or electronics used in connection with child pornography possession, distribution, or production, as well as criminal fines ranging as high as $250,000. Registration as a sex offender, often for life, and government supervision upon release is usually mandatory. Victims may also be entitled to sue for civil damages related to their participation in making the child pornography.
Either state or federal authorities can prosecute child pornography cases, however, the majority of cases involving child pornography in recent years have been brought in federal courts, which have sentencing guidelines that are exponentially greater than similar prosecutions in state courts. The prosecution of federal child pornography and sex crime cases has skyrocketed in the past decade:
Number of Federal Child Pornography Cases Filed By Year
1995 2000 2005 2009 2010 2011 2012 2013
86 462 1,112 1,826 1,692 1,797 1,645 1,769
Under federal law, child pornography is any photograph, film, video, or computer generated image that portrays or depicts any minor in a sexually explicit fashion. Both the federal government and all individual states have criminalized the production, distribution, conveyance and possession of visual depictions of all kinds that portray any minor engaging in sexually explicit conduct. Furthermore, due to the nature of the crimes, the overwhelming public disdain relating to these offenses and the age of the victims, the legislatures have enacted and mandated severe penalties in connection with child pornography offenses. In fact, it is common to be faced with a five (5) year mandatory minimum sentence of incarceration for receiving or possessing one (1) child pornography image. Congress over the past two decades has repeatedly increased penalties for federal child pornography cases without any substantial cause or reason.
Remember, if you or a loved one is charged with or under investigation for a federal child pornography offense, then it is imperative to preserve and protect your/their rights. Retaining an experienced Kentucky federal criminal defense attorney to protect those rights should be done immediately. Facing criminal charges can be life altering in many ways. Contact a skilled, experienced and aggressive criminal defense attorney to protect your rights, your reputation and your future: J. Clark Baird, available 24/7 at (502) 797-4625 and at email@example.com
Defending Federal Child Pornography Cases
When an individual is charged with federal child pornography offense, one of the first lines of defense is to challenge any searches or seizures that led to the discovery of images by law enforcement. When evidence of any crime has been discovered during a warrantless search without the property owner’s consent, it is likely that the search has violated the Fourth Amendment to the U.S. Constitution. Further, some search warrants can be held invalid if the officer lied in order to obtain the warrant or failed to provide an accurate summary of the investigation to the judge issuing the warrant. Where such a violation of constitutional rights has occurred, suppression of all evidence seized is a real possibility.
There are two primary types of federal (and state) investigations into child pornography: scanning software that searches peer to peer file (P2P) sharing websites and other websites where child pornography is available for download and sting operations.
In the course of child pornography sting operations, federal agents often attempt to induce individuals into distributing or receiving pornographic images by communicating under with him under a false identity. Where this has happened, entrapment may have occurred. If a defendant can show that he would likely not have committed a crime without the government’s encouragement, he cannot be held criminally responsible.
The federal government has software that uses algorithms to scan and search for child pornography on peer to peer (P2P) file sharing sites like limewire.com and frostwire.com and eDonkey.com, which are commonly used to obtain, distribute, trade or transfer child pornography. From this technology the federal government can determine what accounts have uploaded or downloaded child pornography. At this point the federal government will issue subpoenas to the internet provider (IP) to determine whose internet account the child pornography was downloaded on and what the name and address are connected to that account. Next the federal government will obtain a search warrant and come to the suspects house, seize their computer and any internet accessible devices (cell phones, Ipads, Ipods, etc.), hard drives, flash drives, and other possible evidence.
There are many other possible defenses to child pornography charges. For examples, viruses may sometimes automatically download files to a computer without the owner’s knowledge. Other times child pornography may have been maliciously placed on another person’s computer, or a computer or internet connection may have been hijacked by other parties. An attorney experienced in federal child pornography defense will be able to sort through the complex evidence in these cases to determine how best to challenge the government and protect your rights.
The Elements of a Federal Child Porn Charge
The elements of a federal child porn charge – these are the things that the government has to prove are true in order to get a jury to convict for a federal child porn charge.
- knowingly possesses
- any image
- that contains child pornography, and
- the image moved interstate commerce or was made by items that moved in interstate commerce.
If the government can prove all of those elements, the jury will be instructed to find the person accused guilty. This is why it is crucial to not talk to federal agents without counsel and to contact an aggressive federal child pornography criminal defense immediately. Contact J. Clark Baird 24/7 at (502) 797-4625 or firstname.lastname@example.org.
The Typical Defenses to a Child Pornography Charge
EVIDENCE OF CHILD PORN IN A BROWSER CACHE
NOT ENOUGH TO PROVE POSSESSION OR VIEWING
In United States v Stulock, 308 F.3d 922 (8th Cir. 2002), the defendant was acquitted of possession charges based on evidence he had viewed the images and the computer then automatically downloaded them onto his browser’s cache. See also, United States v Lacy, 119 F.3d 742 (9th Cir. 1997) (trial court erred in not instructing that the defendant must know that the hard drive and disks contained child pornography to be guilty of possession of pornography), Barton v State, 648 S.E.2d 660 (Ga.App. 2007) (reversing conviction when there was no evidence defendant took any affirmative action to save the images on his computer cache file or could have known, filed or accessed those files; possession requires affirmative action by defendant to save or download the images or know that the computer is saving the files)
ACCIDENTAL POSSESSION OF CHILD PORN (Issues of Intent)
What if a defendant accidentally acquires child pornography? The most obvious reaction if the computer user wanted to get rid of it would be to delete it. While it has become common in affidavits for search warrants to include the ability of law enforcement to retrieve deleted images, this doesn’t address a completely innocent act by an unsophisticated user to delete them because he doesn’t want them. Most individuals with day to day computer skills would assume that to delete means just that. Does deleting it mean it is retained because law enforcement forensic computer experts can retrieve it even though the user can’t? How can one possess something that’s lost to him? Having considered these different perspectives, the court in State v Jensen, 173 P.3d 1046 (Ariz.App. 2008) said,
“The arguments posited by each side on this issue have merit. The view that knowing possession requires an affirmative act on the part of the defendant to save the image or at least knowing that the computer is saving it seems consistent with the Arizona definition of knowingly possessing an item requiring a voluntary act on the part of the defendant giving him dominion and control over the items. In contrast, it could be contended that once a defendant knowingly receives such an image, the defendant has the ability to control it by downloading it, printing it or otherwise saving it.”
The court then determined that, regardless of possession, the defendant had received the material because he “actively searched for those types of images on the computer over an extended period of time, resulting in nearly 25,000 hits for websites containing certain key phrases and combinations of words often associated with child pornography and “exploitation of minors.” But seeking something is not equivalent to possessing it: looking for toilet paper in the grocery store doesn’t mean you ever possessed toilet paper.
The defense strategies of involuntariness and intent have emerged in cases as crucial to possession of child pornography. Possession of “cyberspace” intangibles, like data files, .jpegs, and clouds, necessarily stems from older legal concepts of property and possession. Our typical understanding of criminal justice is that a defendant, in order to be found guilty, must be shown, at some level, to know and intend that his act be illicit (the intent requirement, also known as mens rea). If one finds a book in the library and its contents are pornographic, one would assume the book is lawful since it’s found in the library. If one sees something on television, one assumes that watching it isn’t unlawful. To the average person, finding child pornography on this highly public medium would suggest that it’s not unlawful to look at it.
THE LOGIC BEHIND MAKING IT ILLEGAL TO “VIEW” SOMETHING
Hypothetically, evidence shows that a man has unlawful drugs in his pocket. It would be hard for him to argue that he didn’t know drugs were in his pocket. Of course the federal government doesn’t need to prove facts other than that the defendant had them in his pocket because the likelihood of his not knowing their presence is too remote to seriously consider. But in the case of material on a computer, there is a very real possibility of the defendant isn’t aware that some data file, picture or video is on his computer: lots of people have dozens of files and programs on their computer that they are completely unaware of.
TRANSMISSION OF CHILD PORNOGRAPHY
The above issues also affect federal child pornography charges involving the transmission of child pornography. The reason for this is simple: peer-to-peer internet (P2P) sites like limewire and eDonkey permit the general public to download items off of your computer without your knowledge. Should you have child pornography on your computer, the general public would be able to download that as well–all without your knowledge. Recently a transmission case was overturned by the appeals court for that very reason, as peer-to-peer networks do not require any affirmative action on the part of the computer owner in order to “transmit” the pictures. In the case of Biller v. State, the court overturned a transmission of child porn conviction because the defendant was unaware that the police had downloaded the pictures from his computer via limewire. 109 So. 3d 1240 (Fla. 5th DCA 2013). The court in Biller noted that the definition of “transmit” requires some act on the part of the defendant, more specifically, “the act of sending and causing to be delivered any image”. Merely having computer files available for download via eDonkey or Limewire does not meet that definition.
No matter what, if you are contacted or arrested or indicted on federal child pornography charges, contact J. Clark Baird, an aggressive Kentucky federal criminal defense attorney who is experienced in dealing with child pornography and other federal sex crimes. Attorney Baird has practiced in ten federal districts across the country. J. Clark Baird is licensed to practice in all state courts in the Commonwealth of Kentucky. Attorney Baird will also represent you in state court in any other state, or in any federal jurisdiction. J. Clark Baird has represented in federal court the defendant charged with the largest individual collection of child pornography ever found within the United States. Attorney Baird was able to negotiate a favorable plea agreement for this defendant. And J. Clark Baird can assist you.
DO NOT TALK TO LAW ENFORCEMENT AGENTS OR ALLOW THEM TO SEARCH! EXERCISE YOUR SIXTH AMENDMENT RIGHT TO COUNSEL AND DEMAND TO SPEAK TO YOUR LAWYER!! Contact Louisville, Kentucky federal criminal defense attorney J. Clark Baird immediately for assistance: (502) 583-3388 or email@example.com or After Hours 24/7 at (502) 797-4625!