POSSESSION OF CHILD PORNOGRAPHY
Child pornography is a serious federal crime that can result in very severe punishments if convicted. These cases are prosecuted by the United States Attorney’s Office. Most often, the investigation is conducted by Homeland Security; however, other federal (i.e. FBI) or state law enforcement agencies can begin or facilitate the investigation. If you have been charged or you think you are under investigation, it is critical that you speak to a Fort Worth based attorney experienced in Child Pornography cases representing you immediately. Before you speak with anyone else, contact a lawyer.
Cody Cofer is a federal criminal defense attorney and is considered one of the best Fort Worth attorneys with experience in child pornography cases. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization, and he is a former Assistant Federal Public Defender for the Northern District of Texas. Our firm has the skill and tools to help you face these terrifying charges. You will be treated with absolute compassion and respect.
Not Guilty at Trial
In most cases there are three main areas of concern when analyzing whether a someone knowingly possessed child pornography under 18 U.S.C. §2252: (1) whether the person had knowledge child pornography was being downloaded to his computer; (2) whether the person can be liable for child pornography on another person’s computer; or (3) whether the case implicates the “prompt deletion” defense under 18 U.S.C. §2252(c). These are the most common defensive theories a defendant may present at trial to convince a jury to return a verdict of “Not Guilty.”
There may be other issues requiring a more nuanced understanding of federal laws. These may relate to some First Amendment protections or very specialized expert analysis of the material alleged to be child exploitation.
Your defense team needs to begin work as soon as possible. An effective defense takes time and resources to prepare. We often employ the help of leading forensic analysts or other experts. Meet one of the best Fort Worth attorneys with experience in child pornography cases to gain a better understanding of the defensive strategy that may best suit your case.
Federal criminal defense lawyers experienced in child pornography cases are familiar with the very strong arguments asking the court to either disregard the Guidelines or grant a variance pursuant to 18 U.S.C. § 3553(a). In most cases an attorney experienced in child pornography cases approach sentencing with a two-pronged attack to provide for the best possible chance of success.
First, an experienced attorney would challenge the applicability of the Sentencing Guidelines to facts of the case and the characteristics of our client. A federal district court has the ability to disregard or vary from the Guidelines based on a policy disagreement with the U.S. Sentencing Commission or Congress. There are a variety of problems inherent within child pornography guidelines, including:
- Many Guideline enhancements apply to almost every defendant;
- There was a gross lack of thoughtful study before increasing the sentences Guidelines;
- If the Guidelines are applied almost every defendant will be sentenced to near the statutory maximum penalty; and
- Many people with contact offenses and actual child molesters receive lighter sentences than those charged with only having contact with video or images.
While thoughtful attacks on the applicability the Guidelines has provided some success, we are also thorough in our requests for downward variances based on the sentencing factors laid out in Section 3553(a). The court should “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”
We make very case specific presentations related to the 3553 Factors. But several arguments may apply to many cases. We educate the judge on the extreme vulnerability to abuse in prison to which a person convicted of a child pornography charge will be exposed. If at all possible, it is incredibly helpful to have an expert explain why the defendant is not at risk for re-offending if provided the proper treatment.
Your chances of a better outcome are likely increased the sooner we can begin developing our presentation of all the mitigating factors in your case. Meet with us immediately, so that we may begin to put the pieces together to tell your story to the judge. We need the judge to view you as a human, worthy of love and dignity. If your case is not properly prepared, the judge is left with a dangerous image.
What does the Federal Government have to prove at trial?
Federal Title 18, United States Code, Section 2252(a)(4)(B), makes it a crime to knowingly possess or access with intent to view matter that contains any visual depiction of a minor engaging in sexually explicit conduct that has been mailed, shipped, or transported using any means or facility of interstate or foreign commerce, including by use of a computer.
For a jury to find you guilty of possession of child pornography, a jury must be convinced that the Government has proved each of the following elements beyond a reasonable doubt:
- You knowingly possessed or accessed with the intent to view any material that contained any visual depiction of a minor engaging in sexually explicit conduct;
- The items have some connection to interstate or foreign commerce;
- That the producing of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
- The visual depiction was of a minor engaged in a sexually explicit conduct; and
- You knew that such visual depiction was of sexually explicit conduct, and that at least one of the persons engaged in sexually explicit conduct in such visual depiction was a minor.
Constructive possession is sufficient to sustain a conviction under federal law. See as an example United States v. Villasenor, 236 F.3d 220, 223 (5th Cir. 2000) or United States v. Layne, 43 F.3d 127, 131 (5th Cir. 1995).
There are very narrow affirmative defenses for someone who possessed less than three pieces of material containing child pornography. It is a defense if the person promptly, and in good faith, took reasonable steps to destroy each depiction. For the defense to apply, a person cannot retain any of the material or allow any person, other than a law enforcement agency, to access the material. It is also a defense if you contact law enforcement immediately and allowed that agency access to each and every visual depiction. These defenses are found in 18 U.S.C. § 2252(c).
Receipt or Distributing
Federal Title 18, United States Code, Section 2252(a)(2), makes it a crime to knowingly receive, distribute, or reproduce for distribution any visual depiction of a minor engaging in a sexually explicit conduct.
For a jury to find someone guilty of receipt or distribution, a jury must be convinced that the Government has proved each of the following beyond a reasonable doubt:
- That you knowingly received or distributed a visual depiction by using any means or facility of interstate or foreign commerce;
- That the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
- That such visual depiction was of a minor engaged in sexually explicit conduct; and
- That you knew that such visual depiction was of sexually explicit conduct and that at least one of the persons engaged in sexually explicit conduct in such visual depiction was a minor.
In some cases, downloading images and videos containing illegal material from a peer-to-peer network and storing the material in a shared folder accessible to other users on the network may amount to “distribution” of child pornography under 18 U.S.C. § 2252A(a)(2)(B). This is true even when there is no evidence that anyone else even accessed the files.
Title 18, United States Code, Section 2251(a), makes it a crime to employ, use, persuade, induce, entice, or coerce any minor to engage in sexually explicit conduct for the purpose of producing a visual depiction or transmitting a live visual depiction of such conduct.
For a jury to find someone guilty of producing child pornography, a jury must be convinced that the Government has proved each of the following beyond a reasonable doubt:
- That you used, persuaded, induced, enticed or coerced a minor to engage in sexually explicit conduct;
- That you acted with the purpose of producing a visual depiction or transmitting a live vidual depiction of such conduct; and
- There was a link to interstate commerce, by proving:
- Visual depiction were actually transported or transmitted using any means or facility of interstate (or foreign) commerce;
- Visual depictions were transported or transmitted using any means that affects interstate or foreign commerce;
- Visual depictions were mailed;
- Visual depiction were produced or transmitted using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or
- You knew or had reason to know that the visual depiction would be transported or transmitted using any means or facility of interstate or foreign commerce.
The law does not require that you know the interstate nature of an instrument or device on which an illegal depiction of child exploitation is produced. See as an example United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012). It is also not required that the person who exploited a minor be the same person who produced the visual depiction which traveled in interstate commerce.
Terms Used in Federal Cases
The term “computer” means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communication facility directly related to or operating in conjunction with such device.
A “minor” is any person under the age of eighteen years. The Government does not have prove a person had knowledge of the age of a minor victim. As an example see United States v. Crow, 164 F.3d 229, 236 (5th Cir. 1999).
“Sexually explicit conduct” means actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person.
Not every exposure of the genitals or pubic area constitutes lascivious exhibition. Whether a visual depiction constitutes such a lascivious exhibition requires consideration of the overall content of the material. Several factors can be considered, including:
- Whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
- Whether the setting of the depiction is sexually suggestive, that is, in a place or pose associated with sexual activity;
- Whether the child is depicted in an un- natural pose or in inappropriate attire, considering the age of the child;
- Whether the child is fully or partially nude; whether the visual depiction suggests sexual coy- ness or a willingness to engage in sexual activity; or
- Whether the depiction is designed to elicit a sexual response in the viewer.
This list is not exhaustive, and no single factor is dispositive. You may see these factors referred to as the Dost Factors. This list of factors is particularly significant in child pornography cases prosecuted in the Federal Fifth Circuit. The explanation of “lascivious exhibition” is derived from United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), and has been adopted by the Fifth Circuit. See as an example Steen, 634 F.3d at 826; United States v. Grimes, 244 F.3d 375, 380 (5th Cir. 2001).
The term “producing” means producing, directing, manufacturing, issuing, publishing, or advertising. This can be a complex term in the context of child pornography cases In the Fifth Circuit, courts have found that images were “produced” when they were copied or downloaded onto hard drives, disks, or compact discs.
“Visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format.
To “receive” something means to knowingly accept or take possession of something. Receipt does not require proof of ownership.
To “distribute” something simply means to deliver or transfer possession of it to someone else, with or without any financial interest in the transaction.