Title 18. Crimes and Criminal Procedure (Refs & Annos)

FOR EDUCATIONAL USE ONLY Page 1

18 U.S.C.A. § 2252A

Effective: July 27, 2006

United States Code Annotated Currentness Title 18. Crimes and Criminal Procedure (Refs & Annos) Part I. Crimes (Refs & Annos) Chapter 110. Sexual Exploitation and Other Abuse of Children (Refs & Annos)

§ 2252A. Certain activities relating to material constituting or containing child pornography

(a) Any person who--

(1) knowingly mails, or transports or ships in interstate or foreign commerce by any means, including by computer, any child pornography;

(2) knowingly receives or distributes--

(A) any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or

(B) any material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer;

(3) knowingly--

(A) reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer; or

(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains--

(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or

(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;

(4) either--

(A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly sells or possesses with the intent to sell any child pornography; or

18 U.S.C.A. § 2252A

(B) knowingly sells or possesses with the intent to sell any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer;

(5) either--

(A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography; or

(B) knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or

(6) knowingly distributes, offers, sends, or provides to a minor any visual depiction, including any photograph, film, video, picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, where such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct--

(A) that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer;

(B) that was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or

(C) which distribution, offer, sending, or provision is accomplished using the mails or by transmitting or causing to be transmitted any wire communication in interstate or foreign commerce, including by computer,

for purposes of inducing or persuading a minor to participate in any activity that is illegal. [FN1]

shall be punished as provided in subsection (b).

(b)(1) Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but, if such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession,

18 U.S.C.A. § 2252A receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years.

(2) Whoever violates, or attempts or conspires to violate, subsection (a)(5) shall be fined under this title or imprisoned not more than 10 years, or both, but, if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.

(c) It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that--

(1)(A) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct; and

(B) each such person was an adult at the time the material was produced; or

(2) the alleged child pornography was not produced using any actual minor or minors.

No affirmative defense under subsection (c)(2) shall be available in any prosecution that involves child pornography as described in section 2256(8)(C). A defendant may not assert an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) unless, within the time provided for filing pretrial motions or at such time prior to trial as the judge may direct, but in no event later than 10 days before the commencement of the trial, the defendant provides the court and the United States with notice of the intent to assert such defense and the substance of any expert or other specialized testimony or evidence upon which the defendant intends to rely. If the defendant fails to comply with this subsection, the court shall, absent a finding of extraordinary circumstances that prevented timely compliance, prohibit the defendant from asserting such defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) or presenting any evidence for which the defendant has failed to provide proper and timely notice.

(d) Affirmative defense.--It shall be an affirmative defense to a charge of violating subsection (a)(5) that the defendant--

(1) possessed less than three images of child pornography; and

(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof--

(A) took reasonable steps to destroy each such image; or

18 U.S.C.A. § 2252A

(B) reported the matter to a law enforcement agency and afforded that agency access to each such image.

(e) Admissibility of evidence.--On motion of the government, in any prosecution under this chapter or section 1466A, except for good cause shown, the name, address, social security number, or other nonphysical identifying information, other than the age or approximate age, of any minor who is depicted in any child pornography shall not be admissible and may be redacted from any otherwise admissible evidence, and the jury shall be instructed, upon request of the United States, that it can draw no inference from the absence of such evidence in deciding whether the child pornography depicts an actual minor.

(f) Civil remedies.--

(1) In general.--Any person aggrieved by reason of the conduct prohibited under subsection (a) or (b) or section 1466A may commence a civil action for the relief set forth in paragraph (2).

(2) Relief.--In any action commenced in accordance with paragraph (1), the court may award appropriate relief, including--

(A) temporary, preliminary, or permanent injunctive relief;

(B) compensatory and punitive damages; and

(C) the costs of the civil action and reasonable fees for attorneys and expert witnesses.

(g) Child exploitation enterprises.--

(1) Whoever engages in a child exploitation enterprise shall be fined under this title and imprisoned for any term of years not less than 20 or for life.

(2) A person engages in a child exploitation enterprise for the purposes of this section if the person violates section 1591, section 1201 if the victim is a minor, or chapter 109A (involving a minor victim), 110 (except for sections 2257 and 2257A), or 117 (involving a minor victim), as a part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and commits those offenses in concert with three or more other persons.

CREDIT(S)

(Added Pub.L. 104-208, Div. A, Title I, § 101(a) [Title I, § 121, subsection 3(a)], Sept. 30, 1996, 110 Stat. 3009-28, and amended Pub.L. 105-314, Title II, § § 202(b), 203(b), Oct. 30, 1998, 112 Stat. 2978; Pub.L. 107-273, Div. B, Title IV, § 4003(a)(5), Nov. 2, 2002, 116 Stat. 1811; Pub.L. 108-21, Title I, § 103(a)(1)(D), (E), (b)(1)(E), (F), Title V, § § 502(d), 503, 505,

18 U.S.C.A. § 2252A

507, 510, Apr. 30, 2003, 117 Stat. 652, 653, 679, 680, 682 to 684; Pub.L. 109-248, Title II, § 206(b)(3), Title VII, § 701, July 27, 2006, 120 Stat. 614, 647.)

[FN1] So in original. The period probably should be a comma.

HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

2002 Acts. House Conference Report No. 107-685 and Statement by President, see 2002 U.S. Code Cong. and Adm. News, p. 1120.

2003 Acts. House Conference Report No. 108-66 and Statement by President, see 2003 U.S. Code Cong. and Adm. News, p. 683.

2006 Acts. Statement by President, see 2006 U.S. Code Cong. and Adm. News, p. S35.

References in Text

Chapter 71, referred to in subsec. (b), is 18 U.S.C.A. § 1460 et seq.

Chapter 109A, referred to in subsec. (b), is 18 U.S.C.A. § 225 et seq.

Chapter 117, referred to in subsec. (b), is 18 U.S.C.A. § 2421 et seq.

Amendments

2006 Amendments. Subsec. (b)(1). Pub.L. 109-248, § 206(b)(3)(A), inserted "section 1591," after "this chapter,".

Pub.L. 109-248, § 206(b)(3)(B), inserted ", or sex trafficking of children" after "pornography".

Subsec. (g). Pub.L. 109-248, § 701, added subsec. (g).

2003 Amendments. Subsec. (a)(3). Pub.L. 108-21, § 503(1)(A), rewrote subsec. (a)(3), which formerly read: "knowingly reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer;".

Subsec. (a)(4). Pub.L. 108-21, § 503(1)(B), struck out "or" at the end.

Subsec. (a)(5). Pub.L. 108-21, § 503(1)(C), struck out the comma at the end and inserted "; or".

Subsec. (a)(6). Pub.L. 108-21, § 503(1)(D), added subsec. (a)(6).

Subsec. (b). Pub.L. 108-21, § 507, inserted "chapter 71" before each occurrence of "chapter

18 U.S.C.A. § 2252A

109A", and inserted "or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice)," before each occurrence of "or under the laws."

Subsec. (b)(1). Pub.L. 108-21, § 103(a)(1)(D)(i), struck out "not more than 15" and inserted "not more than 20".

Pub.L. 108-21, § 103(a)(1)(D)(ii), struck out "nor more than 30" and inserted "nor more than 40".

Pub.L. 108-21, § 103(b)(1)(E)(i), struck out "or imprisoned" and inserted "and imprisoned not less than 5 years and".

Pub.L. 108-21, § 103(b)(1)(E)(ii), struck out "or both," preceding "but, if such".

Pub.L. 108-21, § 103(b)(1)(E)(iii), struck out "not less than 5" and inserted "not less than 15".

Pub.L. 108-21, § 503(2), which directed the substitution of "paragraph (1), (2), (3), (4), or (6)" for "paragraphs (1), (2), (3), (4), or (6)" was executed by making the substitution for "paragraphs (1), (2), (3), or (4)", to reflect the probable intent of Congress.

Subsec. (b)(2). Pub.L. 108-21, § 103(a)(1)(E)(i), struck out "not more than 5" and inserted "not more than 10".

Pub.L. 108-21, § 103(a)(1)(E)(ii), struck out "nor more than 10" and inserting "nor more than 20".

Pub.L. 108-21, § 103(b)(1)(F), struck out "not less than 2" and inserted "not less than 10".

Subsec. (c). Pub.L. 108-21, § 502(d), rewrote subsec. (c), which formerly read: "It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3), or (4) of subsection (a) that--

"(1) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct;

"(2) each such person was an adult at the time the material was produced; and

"(3) the defendant did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct."

Subsec. (e). Pub.L. 108-21, § 505, added subsec. (e).

Subsec. (f). Pub.L. 108-21, § 510, added subsec. (f).

2002 Amendments. Subsec. (b)(1). Pub.L. 107-273, § 4003(a)(5), substituted "paragraph" for

18 U.S.C.A. § 2252A

"paragraphs".

Subsec. (c). Pub.L. 107-273, § 4003(a)(5), in the matter preceding par. (1), substituted "paragraph" for "paragraphs".

1998 Amendments. Subsec. (a)(5). Pub.L. 105-314, § 203(b)(1), struck out "3 or more images" each time it appeared, and inserted "an image".

Subsec. (b)(1), (2). Pub.L. 105-314, § 202(b)(1), struck out "or chapter 109A" each time it appeared, and inserted ", chapter 109A, or chapter 117".

Subsec. (b)(2). Pub.L. 105-314, § 202(b)(2), struck out "the possession of child pornography", and inserted "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography".

Subsec. (d). Pub.L. 105-314, § 203(b)(2), added subsec. (d).

LAW REVIEW COMMENTARIES

The Child Pornography Prevention Act of 1996 and the First Amendment: Virtual antitheses. Sarah Sternberg, 69 Fordham L. Rev. 2783 (2001).

LIBRARY REFERENCES

American Digest System

Obscenity 5.

Key Number System Topic No. 281.

Corpus Juris Secundum

CJS Obscenity § 21, Burden of Proof.

CJS Obscenity § 22, Admissibility of Evidence.

RESEARCH REFERENCES

ALR Library

10 ALR, Fed. 2nd Series 1, Comment Note: Construction and Application of United States Supreme Court Holding of U.S. v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), Rendering U.S. Sentencing Guidelines...

18 U.S.C.A. § 2252A

7 ALR, Fed. 2nd Series 1, Validity, Construction, and Application of Federal Enactments Proscribing Obscenity and Child Pornography or Access Thereto on the Internet.

2 ALR, Fed. 2nd Series 533, Validity, Construction, and Application of 18 U.S.C.A. § 2252A(A), Proscribing Certain Activities Relating to Material Constituting or Containing Child Pornography.

187 ALR, Fed. 373, Validity, Construction, and Application of Dna Analysis Backlog Elimination Act of 2000, 42 U.S.C.A. § § 14135 et Seq and 10 U.S.C.A. § 1565.

168 ALR, Fed. 375, When Does Forfeiture of Real Property Violate Excessive Fines Clause of Eighth Amendment--Post-Austin Cases.

164 ALR, Fed. 61, Downward Departure from United States Sentencing Guidelines (U.S.S.G. § § 1a1.1 et Seq) Based on Aberrant Behavior.

145 ALR, Fed. 481, Construction and Application of United States Sentencing Guideline § § 2G2.1 et Seq., Pertaining to Child Pornography.

99 ALR, Fed. 643, Validity, Construction, and Application of 18 U.S.C.A. § 2251, Penalizing Sexual Exploitation of Children.

86 ALR, Fed. 359, Validity and Construction of 18 U.S.C.A. § § 371 and 2252(A) Penalizing Mailing or Receiving, or Conspiring to Mail or Receive, Child Pornography.

21 ALR, Fed. 655, Direct Review by United States Court of Appeals of Duration of Sentence Imposed by District Court in Federal Criminal Prosecution, Where Duration Does Not Exceed Statutorily Authorized Maximum.

4 ALR 6th 1, Validity of Condition of Probation, Supervised Release, or Parole Restricting Computer Use or Internet Access.

84 ALR 5th 1, Validity of Search or Seizure of Computer, Computer Disk, or Computer Peripheral Equipment.

42 ALR 5th 291, Validity, Construction, and Application of State Statutes or Ordinances Regulating Sexual Performance by Child.

74 ALR 4th 388, Right of Indigent Defendant in State Criminal Case to Assistance of Chemist, Toxicologist, Technician, Narcotics Expert, or Similar Nonmedical Specialist in Substance Analysis.

15 ALR 4th 582, Adequacy of Defense Counsel's Representation of Criminal Client Regarding Appellate and Postconviction Remedies.

18 U.S.C.A. § 2252A

10 ALR 4th 8, Adequacy of Defense Counsel's Representation of Criminal Client Regarding Guilty Pleas.

Encyclopedias

14 Am. Jur. Proof of Facts 2d 1, Reliability of Polygraph Examination.

45 Am. Jur. Proof of Facts 2d 631, Age of Person.

55 Am. Jur. Proof of Facts 3d 249, Proof that Motion Picture is Obscene or Harmful to Minors.

61 Am. Jur. Proof of Facts 3d 51, Cyberporn: Transmission of Images by Computer as Obscene, Harmful to Minors or Child Pornography.

10 Am. Jur. Trials 1, Obscenity Litigation.

42 Am. Jur. Trials 313, Uses, Techniques, and Reliability of Polygraph Testing.

70 Am. Jur. Trials 435, the Defense of a Computer Crime Case.

Am. Jur. 2d Constitutional Law § 414, Overbreadth of Legislation; Generally -- Specific Fields of Legislation.

Am. Jur. 2d Criminal Law § 880, Effect of Reduced Mental CAPacity.

Am. Jur. 2d NTS, Computers and the Internet § 97, Use of Computer Service for Carriage or Receipt of Obscene, Lewd, or Related Types of Information or Matters of Indecent Character in Interstate or Foreign Commerce.

Treatises and Practice Aids

Courtroom Handbook of Federal Evidence FRE R 402, Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.

Federal Procedure, Lawyers Edition § 22:250, Offenses for Which Interception May be Authorized.

Federal Procedure, Lawyers Edition § 22:1855, Rebuttable Presumptions Favoring Detention.

Federal Procedure, Lawyers Edition § 22:2009, Term of Supervised Release.

NOTES OF DECISIONS

Admissibility of evidence 5 Constitutionality 1

18 U.S.C.A. § 2252A

Discovery 11 Double jeopardy 1a Extraterritoriality 7 Foreign commerce 8 Indictment 12 Jury instructions 6

Lasciviousness 10 Mail 9 Plea agreement 3a Pretrial agreement 3 Sentence 2 Weight and sufficiency of evidence 4

1. Constitutionality

The affirmative defense contained in the Child Pornography Prevention Act of 1996 (CPPA), which allows a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children, cannot save the ban on virtual child pornography from overbreadth challenge under the First Amendment, even if an affirmative defense can save a statute from First Amendment challenge, as the defense is incomplete and insufficient, in that it allows persons to be convicted in some instances where they can prove children were not exploited in the production. Ashcroft v. Free Speech Coalition, U.S.2002, 122 S.Ct. 1389, 535 U.S. 234, 152 L.Ed.2d 403. Constitutional Law 90.4(1); Obscenity 2.5

Congress acted within its authority under the Commerce Clause in criminalizing the intrastate possession of child pornography which had been transmitted through several states via the internet; Congress could rationally conclude that intrastate possession of child pornography had an effect on market forces and acted within its authority in proscribing the possession. U.S. v. Sullivan, C.A.D.C.2006, 451 F.3d 884. Obscenity 2.5

Use of Internet to transmit photographs satisfies interstate commerce element of federal law prohibiting receipt of child pornography; once user submits connection request to a website server or image is transmitted back to user, data has traveled in interstate commerce, given interstate nature of Internet, even though it is impossible to know exact route taken by user's request and even though, depending on volume of Internet traffic, request can travel entirely intrastate or partially interstate. U.S. v. MacEwan, C.A.3 (Pa.) 2006, 445 F.3d 237. Obscenity 5.2

Evidence of resident's membership in e-group associated with Internet site devoted to generating, inventorying and exchanging child pornography supplied probable cause for issuance of search warrant for residence; individuals who sought membership were presented with detailed welcome message making clear group's essential purpose, and thus resident's affirmative joining

18 U.S.C.A. § 2252A of group provided fair probability that his networked computer was likely to contain child pornography or evidence, fruits or instrumentalities of its exchange. U.S. v. Martin, C.A.2 2005, 426 F.3d 83. Searches And Seizures 114

Textual e-mail exchanged by members of e-group associated with Internet site containing downloadable child pornography was not protected speech; messages facilitated, inter alia, members' meeting and talking with sexually exploited children, and vast majority of all-text messages sent to members were generated automatically to alert members to new uploaded files. U.S. v. Martin, C.A.2 2005, 426 F.3d 83. Obscenity 5.1

Fact that majority of electronic mail exchanged on Internet site devoted to child pornography contained only text did not negate probable cause to search residence of member of e-group associated with site; members received detailed welcome message making clear that group's essential purpose was to trade child pornography, significant quantity of e-mail exchanged by members contained image-files of child pornography, and picture- and video-files containing such materials were readily available for download to members. U.S. v. Martin, C.A.2 2005, 426 F.3d 83. Searches And Seizures 40.1

Certificate of appealability (COA) granted with regard to pro se prisoner's § § 2255 motion challenging constitutionality of Child Pornography Prevention Act (CPPA) generally was sufficiently broad to encompass prisoner's claim that United States Supreme Court decision in Free Speech Coalition invalidating CPPA's ban on "virtual" child pornography rendered prisoner's guilty plea unknowing and involuntary. U.S. v. Harms, C.A.10 (Okla.) 2004, 371 F.3d 1208. Criminal Law 1134(7)

Federal statute that prohibited possession of child pornography using materials that moved in interstate commerce was permissible exercise of Congress's authority under commerce clause; possession of child pornography substantially affected interstate commerce, because much of child pornography that concerned Congress was homegrown, untraceable, and entered national market surreptitiously, and fed national market and stimulated demand for child pornography. U.S. v. Harris, C.A.2 (N.Y.) 2004, 358 F.3d 221. Obscenity 2.5

Unconstitutional provisions of Child Pornography Protection Act (CPPA) which expanded definition of child pornography to encompass virtual material were severable from remainder of CPPA, and thus did not affect constitutional viability of provisions regulating possession of traditional child pornography. U.S. v. Kelly, C.A.7 (Ill.) 2003, 314 F.3d 908, certiorari denied 123 S.Ct. 1923, 538 U.S. 1001, 155 L.Ed.2d 829. Statutes 64(6)

Information in police officer's affidavit supporting magistrate's finding of probable cause to issue warrant for search of home of defendant, a high school basketball coach, for adult pornography, was stale, and thus, no probable cause existed, where the affidavit stated that mother of a student stated that six months earlier her son and two other students were shown an Internet video clip, on defendant's home computer, of a woman performing a sexual act with a horse, the affidavit further stated that a former student said he was shown the same video clip at defendant's home ten months earlier at the very earliest, and the affidavit did not suggest that defendant ever

18 U.S.C.A. § 2252A downloaded the video clip or that he continuously acquired or planned to acquire any other pornography. U.S. v. Zimmerman, C.A.3 (Pa.) 2002, 277 F.3d 426, 187 A.L.R. Fed. 761. Searches And Seizures 121.1

Statute extending prohibition on knowing receipt of child pornography to visual depictions that "appear to be" minors engaging in sexually explicit conduct is not facially overbroad; statute's scienter requirement, which applies to age of persons depicted as well as nature of materials, limits scope of statute, and statute should be construed to cover only those images that are virtually indistinguishable to unsuspecting viewers from unretouched photographs of actual children. U.S. v. Fox, C.A.5 (Tex.) 2001, 248 F.3d 394, rehearing denied, vacated 122 S.Ct. 1602, 535 U.S. 1014, 152 L.Ed.2d 617, on remand 293 F.3d 237. Obscenity 2.5

Child Pornography Protection Act (CPPA) provides clear and adequate notice of activity it regulates, such that ordinary citizens and those charged with enforcing law may readily understand what is prohibited, and thus is not void for vagueness under First Amendment; CPPA explicitly lists elements of child pornography, specifies who is "minor," defines conduct that will not be condoned, does not criminalize any sexually explicit depictions that are not virtually indistinguishable from photographic child pornography, and imposes objective standard in criminalizing depictions which appear to be child pornography. U.S. v. Mento, C.A.4 (Md.) 2000, 231 F.3d 912, vacated 122 S.Ct. 1602, 535 U.S. 1014, 152 L.Ed.2d 617. Constitutional Law 82(10); Obscenity 2.5

Child Pornography Prevention Act's (CPPA) definition of "child pornography" as visual depiction that is "or appears to be" of minor engaging in sexually explicit conduct was not void for vagueness under First Amendment, notwithstanding defendant's argument that it was impossible to tell whether an image "appeared to be" a minor; CPPA's scienter requirement protected against arbitrary enforcement, in that it created incentive for focusing prosecutorial energy on the heart of the child pornography problem, i.e., the pre-pubescent child pornography market. U.S. v. Acheson, C.A.11 (Fla.) 1999, 195 F.3d 645. Constitutional Law 90.4(1); Obscenity 2.5

The Child Pornography Prevention Act (CPPA) is not so overbroad as to contravene the First Amendment, even in its prohibition of sexually explicit material involving person that "appears to be" a minor, in light of narrow construction indicated by the legislative history. U.S. v. Hilton, C.A.1 (Me.) 1999, 167 F.3d 61, rehearing and suggestion for rehearing en banc denied, certiorari denied 120 S.Ct. 115, 528 U.S. 844, 145 L.Ed.2d 98. Constitutional Law 90.4(1); Obscenity 2.5

Search warrant affidavit, listing suspect as member of e-mail group which had been set up for, inter alia, exchange of child pornography, was not sufficient to establish probable cause for search of suspect's residence; there was no representation that suspect received any e-mails or that he received or downloaded or viewed any images or files or that he sent or uploaded any images or files. U.S. v. Perez, S.D.N.Y.2003, 247 F.Supp.2d 459. Searches And Seizures 114

18 U.S.C.A. § 2252A

Defendant's failure, in his prosecution for receiving, possessing, and transporting child pornography, to object to jury instructions or to take direct appeal procedurally barred him from seeking post-conviction relief on ground that United States Supreme Court subsequently found statutory definition of child pornography to be unconstitutional, even though circuit precedent at time of trial held that statute was constitutional, and defendant alleged that he did not in fact believe that images depicted actual children; another circuit had held statute to be unconstitutional, Supreme Court had granted certiorari before trial began, and there was sufficient evidence to support factual finding that visual depictions actually were minors engaging in sexually explicit conduct. U.S. v. Dean, D.Me.2002, 231 F.Supp.2d 382. Criminal Law 1429(1)

Child pornography statute prohibiting receipt or distribution of child pornography in interstate or foreign commerce clearly apprises individuals of nature of conduct proscribed, and, thus, did not violate due process clause of Fifth Amendment due to vagueness, despite defendant's arguments that statute did not define lascivious, what knowledge was required, how to determine age of child or how to tell if photographs are graphic. U.S. v. Marcus, E.D.N.Y.2001, 193 F.Supp.2d 552. Constitutional Law 258(5); Obscenity 2.5

Child pornography statute did not violate Commerce Clause as applied to defendant charged with knowingly receiving child pornography that had been transported in interstate and foreign commerce via Internet; prosecution involved direct regulation of use of channels of interstate commerce. U.S. v. Butler, D.Me.2001, 151 F.Supp.2d 82. Commerce 82.6; Obscenity 2.5

The Child Pornography Prevention Act was passed pursuant to Congress's Commerce Power, and the Act is intended to prevent the traffic in and consumption of child pornography. U.S. v. Tucker, D.Utah 2001, 150 F.Supp.2d 1263, affirmed 305 F.3d 1193, certiorari denied 123 S.Ct. 1335, 537 U.S. 1223, 154 L.Ed.2d 1082. Commerce 82.6; Obscenity 2.5

Child Pornography Protection Act's (CPPA) prohibition of any computer-generated pornographic image which "appears to be" of minor enunciated objective standard, and thus was not unduly vague; jury would decide, based on totality of circumstances, whether reasonable unsuspecting viewer would consider depiction to be of an actual minor engaged in sexual activity. U.S. v. Pearl, D.Utah 2000, 89 F.Supp.2d 1237, affirmed in part, vacated in part 324 F.3d 1210, certiorari denied 123 S.Ct. 2591, 539 U.S. 934, 156 L.Ed.2d 616. Constitutional Law 258(5); Obscenity 2.5

Child Pornography Prevention Act (CPPA) was neither constitutionally overbroad nor vague; although defendant alleged that CPPA criminalized constitutionally protected free speech by banning depictions of adults who otherwise only appeared to be minors, defendant's argument ignored fact that it was a defense to charge under CPPA if the alleged child pornography was actually of an adult. U.S. v. Fox, E.D.Tex.1999, 74 F.Supp.2d 696, affirmed 248 F.3d 394, rehearing denied, vacated 122 S.Ct. 1602, 535 U.S. 1014, 152 L.Ed.2d 617, on remand 293 F.3d 237. Obscenity 2.5

18 U.S.C.A. § 2252A

Provision of Child Pornography Prevention Act (CPPA) prohibiting "any visual depiction" that appeared to be of a minor engaging in sexually explicit conduct, as applied with statutory definition of "child pornography," was too vague to enable viewers presented with materials depicting postpubescent individuals to determine whether individuals had reached age 18. U.S. v. Hilton, D.Me.1998, 999 F.Supp. 131, reversed 167 F.3d 61, rehearing and suggestion for rehearing en banc denied, certiorari denied 120 S.Ct. 115, 528 U.S. 844, 145 L.Ed.2d 98. Constitutional Law 82(10); Obscenity 2.5

Accused's due process right to present a defense to charge of possession of child pornography based on violation of the Child Pornography Prevention Act (CPPA) was violated when the Court of Criminal Appeals independently reviewed the computer images in question to determine whether they were "virtual" rather than "actual", despite fact that the issue of "virtual" versus "actual" was not litigated at the trial level, since it deprived him of the opportunity to present evidence in his defense that the images were "virtual." U.S. v. Cendejas, U.S. Armed Forces 2006, 62 M.J. 334. Military Justice 1419

Accused's plea of guilty to two specifications alleging wrongful receipt and possession of child pornography was provident, despite military judge's use of definition of child pornography in the Child Pornography Prevention Act subsequently found to be unconstitutional in part, where there was no indication that accused believed the images to be child pornography because of the way they were advertised, presented, or displayed, or that the images were child pornography only because they "appeared to be" actual children. U.S. v. Martens, 59 M.J. 501 (A.F. Ct. Crim. App. 2003), review granted in part 59 M.J. 30, affirmed as amended 62 M.J. 369. Military Justice 987

Accused's conviction under the Child Pornography Protection Act (CPPA), as incorporated in charge under the general article, for acts committed while onboard naval station in Spain did not represent an impermissible extraterritorial application of the CPPA, since the UCMJ has unlimited territorial reach, and naval station fell squarely within definition of "Federal territory"; moreover, even if accused's conviction involved an extraterritorial application of Federal law, such application was not in contravention of legislative intent or otherwise impermissible. U.S. v. Cream, 58 M.J. 750 (N.M.Ct.Crim.App. 2003), set aside 60 M.J. 347, review granted in part 60 M.J. 350. Military Justice 523

United States Supreme Court decision holding sections of federal child pornography statute unconstitutionally overbroad did not render invalid accused's convictions of knowing receipt of child pornography transported in interstate commerce by computer, and knowing possession of computer diskettes containing three or more images of child pornography, as sections under which accused was convicted were severable. U.S. v. Tynes, 58 M.J. 704 (Army Ct. Crim. App. 2003), affirmed in part, reversed in part 60 M.J. 329, review granted 60 M.J. 331. Military Justice 501

1A. Double jeopardy

Trying defendant for receipt of child pornography after he had pled guilty to possession of child

18 U.S.C.A. § 2252A pornography did not violate Double Jeopardy Clause, even if latter charge was lesser included offense of former charge, where the two convictions were grouped under Sentencing Guidelines, such that he was not punished separately for them. U.S. v. Kuchinski, C.A.9 (Mont.) 2006, 469 F.3d 853. Double Jeopardy 161

2. Sentence

For purposes of sentencing, defendant did not knowingly receive and possess child pornography images found in his computer's cache files, which were automatically downloaded when he accessed web pages, so that when site was revisited the information would come up more quickly than it would have if it had not been stored on computer's hard drive, absent evidence that defendant was sophisticated computer user, that he tried to get access to cache files, or that he even knew of existence of cache files. U.S. v. Kuchinski, C.A.9 (Mont.) 2006, 469 F.3d 853. Sentencing And Punishment 698

Use of five-level sentencing enhancement for specific offense characteristic of "engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor" in calculating advisory Sentencing Guidelines sentence for transmitting and possessing child pornography was not clear error based on defendant's bragging in Internet conversations about sexual relationships with children, coupled with photographs that, although they did not depict defendant engaging in sexual acts with child, displayed child nude or defendant apparently touching child's buttocks and rendered brags credible. U.S. v. Stewart, C.A.8 (Ark.) 2006, 462 F.3d 960. Sentencing And Punishment 698

District court could rely on videotape of defendant repeatedly having sexual intercourse with minor as basis for uncharged conduct of possession of child pornography, when considering departure from advisory sentence under United States Sentencing Guidelines applicable to defendant's guilty plea to charge of sexual abuse of minor; although district court relied on content of videotape as evidence that defendant repeatedly violated statutory rape law, court relied on different conduct when determining defendant's original and hypothetical sentences. U.S. v. Mack, C.A.8 (S.D.) 2006, 452 F.3d 744. Sentencing And Punishment 909

District court's decision to impose 87 month sentence for defendant's offense of distributing child pornography, a term below the advisory guideline range of 108 to 135 months, was adequately explained and premised on the statutory sentencing factors, and thus could not be considered unreasonable; district court paid close attention to defendant's lack of criminal history, relatively young age, religious background, history of both employment and higher education, lack of previous imprisonment, and imposed special conditions designed to reduce risk of defendant becoming repeat offender. U.S. v. Baker, C.A.7 (Ill.) 2006, 445 F.3d 987. Sentencing And Punishment 90

District court's imposition of lifetime term of supervised release for defendant who pled guilty to knowingly transporting child pornography in interstate commerce was not unreasonable; upper bound of supervised release for defendant's offense was life, district court weighed statistical evidence offered by defendant regarding inverse relationship between age and recidivism and

18 U.S.C.A. § 2252A government's evidence linking sex offenders to recidivism and rebutting that link weakens with age, and defendant had been convicted of sexually abusing a child in state court more than a year after the current events. U.S. v. Hayes, C.A.2 (N.Y.) 2006, 445 F.3d 536. Sentencing And Punishment 1943

Imposition of 15-year mandatory minimum sentence on repeat offender of federal anti-child pornography laws did not violate proportionality principles of Eighth Amendment prohibition against cruel and unusual punishment; gravity of crimes was not so outweighed by harshness of sentence as to support inference of gross disproportionality. U.S. v. MacEwan, C.A.3 (Pa.) 2006, 445 F.3d 237. Sentencing And Punishment 1513

District court's decision, in sentencing defendant convicted of possession of child pornography, to depart upward from recommended Guidelines range of 46 to 57 months and to impose statutory maximum sentence of 120 months in prison was not unreasonable, so that Court of Appeals did not have to remand based on sentencing court's error in improperly considering evidence of defendant's prior arrests for sexual battery on children, where defendant admitted that file on his computer contained 989 still images and 45 movies involving child pornography; district court could have reasonably concluded that defendant's possession of what amounted to more than 4,000 images of child pornography was aggravating circumstance of kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines. U.S. v. Jones, C.A.5 (Miss.) 2006, 444 F.3d 430, petition for certiorari filed 2006 WL 1523778. Sentencing And Punishment 820

Resentencing was required, in prosecution for knowing possession of child pornography, where trial court plainly erred in imposing an enhanced sentence, even though the error was not plain at time of sentencing; enhancements based on judicially-found facts, that offense involved trafficking and that the material at issue involved prepubescent minors or minors under the age of 12 years, violated defendant's Sixth Amendment rights, the error was plain at time of appeal, and error affected defendant's substantial rights inasmuch as there was no evidence to support the findings and the findings resulted in an increased sentence. U.S. v. Bass, C.A.10 (Okla.) 2005, 411 F.3d 1198, certiorari denied 126 S.Ct. 1106, 163 L.Ed.2d 917. Criminal Law 1035(1)

Condition of supervised release, requiring defendant to give probation office advance notification before using "any computer(s), automated service(s), or connected device(s)," did not require him to give notice of use of any and all automated services, including automated banking and electronic airport check-in machines, where it was obvious from offense of conviction, i.e., transporting child pornography through use of computer, that notification was required only of use of computers able to obtain, store, or transmit illicit sexual depictions of, or illicit sexual information on, children. U.S. v. Balon, C.A.2 (N.Y.) 2004, 384 F.3d 38. Sentencing And Punishment 1983(3)

While district court could use alleged child pornographer's prior uncharged conduct in Mississippi as relevant conduct for purposes of applying the Sentencing Guidelines' cross- reference provision and increasing his base offense level, it could not, having relied on this uncharged conduct to increase his base offense level, utilize this same uncharged conduct as

18 U.S.C.A. § 2252A basis for upward sentencing departure, on ground that his past conduct was atypical of defendants in his criminal history category; district court's reliance on prior uncharged conduct as basis for departing upward resulted in impermissible double counting. U.S. v. Rice, C.A.10 (Okla.) 2004, 358 F.3d 1268, vacated 125 S.Ct. 1028, 543 U.S. 1103, 160 L.Ed.2d 1014, on remand 405 F.3d 1108. Sentencing And Punishment 909

Defendant's prior state conviction for having sex with a child age 16 or older was sufficiently similar to federal crime of sexual abuse of a minor, thus five-level sentencing enhancement for engaging in a pattern of sexually exploiting children was appropriate for defendant's conviction of possessing child pornography. U.S. v. Gunderson, C.A.7 (Wis.) 2003, 345 F.3d 471. Sentencing And Punishment 698

In sentencing for knowingly possessing child pornography, defendant's trading of images was properly considered distribution, warranting enhancement of base offense level; defendant actively bartered or exchanged child pornography in order to acquire more pornography. U.S. v. Brown, C.A.7 (Wis.) 2003, 333 F.3d 850, rehearing and rehearing en banc denied, certiorari denied 124 S.Ct. 1170, 540 U.S. 1163, 157 L.Ed.2d 1209. Sentencing And Punishment 698

In sentencing defendant for child pornography crimes, the district court was required to find that victim suffered a psychological injury much more serious than that normally resulting from commission of the underlying offenses, in addition to its finding that the crime resulted in substantial impairment to the victim, before imposing upward departure on the basis of extreme psychological injury; one would expect that any child who was sexually abused and used to produce child pornography would suffer substantial impairment. U.S. v. Lasaga, C.A.2 (Conn.) 2003, 328 F.3d 61, appeal after new sentencing hearing 136 Fed.Appx. 428, 2005 WL 1527762. Sentencing And Punishment 844

Defendant's possession and distribution of child pornography was not outside heartland of normal case, and thus downward departure from Sentencing Guidelines was not permitted; fact that defendant only viewed child pornography on home computer, and that he concealed child- pornography files in hidden location on computer, was not unusual, fact that defendant was first- time offender was already taken into consideration under Guidelines, and fact that defendant had not engaged in any sexual acts with children was irrelevant, since possession and distribution of child pornography alone was proscribed conduct. U.S. v. Thompson, C.A.9 (Mont.) 2002, 315 F.3d 1071. Sentencing And Punishment 855

Requiring defendant who pleaded guilty to, inter alia, child pornography offenses to submit to random polygraph testing as condition of supervised release was not abuse of discretion, inasmuch as condition was reasonably related to both protection of the public and defendant's rehabilitation, testing could be beneficial in enhancing supervision and treatment of defendant, condition did not involve greater deprivation of defendant's liberty than was reasonably necessary to achieve purposes of protecting public and rehabilitating defendant, and, since defendant already was required to report periodically to probation officer and provide truthful answers, additional requirement of polygraphing did not place significantly greater demand on him. U.S. v. Lee, C.A.3 (Del.) 2003, 315 F.3d 206, certiorari denied 124 S.Ct. 160, 540 U.S.

18 U.S.C.A. § 2252A

858, 157 L.Ed.2d 106. Sentencing And Punishment 1983(2)

Government's improper inclusion of facts from defendant's confidential pre-sentence investigation report (PSR) in its statement of facts in its brief on defendant's appeal from conviction for possession of child pornography, where defendant did not challenge his sentence on appeal, did not warrant striking entire statement of facts, since facts from PSR were tangential. U.S. v. Kelly, C.A.7 (Ill.) 2003, 314 F.3d 908, certiorari denied 123 S.Ct. 1923, 538 U.S. 1001, 155 L.Ed.2d 829. Criminal Law 1130(.5)

Condition of supervised release prohibiting defendant, convicted of receiving child pornography, from accessing a computer or the Internet without his probation officer's approval, though reasonably related to the purposes of his sentencing, inflicted a greater deprivation on defendant's liberty than was reasonably necessary, and exceeded the broad discretion of the sentencing judge with respect to conditions of supervised release. U.S. v. Sofsky, C.A.2 (N.Y.) 2002, 287 F.3d 122. Sentencing And Punishment 1983(2)

Finding that defendant who pleaded guilty to possessing child pornography had engaged in pattern of activity involving sexual abuse or exploitation of a minor was not clearly erroneous, and thus supported upward departure imposed by district court under Sentencing Guidelines; in reaching its conclusion, district court examined findings of FBI investigation, which revealed that defendant made indecent proposal to one minor, touched genitals of second minor on multiple occasions, and showed him images of two men having sex, and touched the leg of third minor for purpose of having sexual relationship with him. U.S. v. Neal, C.A.10 (Okla.) 2001, 249 F.3d 1251. Sentencing And Punishment 832

Sentencing Guidelines, as applied to defendant whose base offense level had been determined with reference to a conviction for possession of child pornography, which carried a maximum statutory five-year sentence, were not unconstitutional as violative of due process, even though combined Guidelines range for the child pornography offense and the other offense of which defendant was convicted, possession of stolen property, was 108 to 135 months. U.S. v. Stewart, C.A.5 (Miss.) 1999, 190 F.3d 389. Constitutional Law 270(2); Sentencing And Punishment 658

Consideration, at sentencing for possession of child pornography, of defendant's previous production of that child pornography, under current version of the Sentencing Guidelines, did not violate ex post facto clause; defendant's production of the pornography was being considered only as relevant conduct. U.S. v. Croll, D.Me.2006, 441 F.Supp.2d 158. Sentencing And Punishment 664(4)

Sentence of 63 months' imprisonment for knowingly transporting child pornography by computer in interstate commerce was reasonable; applicable advisory sentencing guidelines range was 51 to 63 months, offense was serious, defendant was young and had no criminal history, and sentence would allow defendant to participate in treatment for sex offenders. U.S. v. Iles, E.D.Va.2005, 384 F.Supp.2d 901. Obscenity 18.1

18 U.S.C.A. § 2252A

Defendant school teacher who was convicted of possession of child pornography for viewing and storing images on school computer was not entitled to downward departure for aberrant behavior where his crime involved significant planning; defendant had repeatedly accessed Internet on school computer over several-month period, using screen name, joining several Internet child pornography clubs, downloading approximately ninety images of erotica and child pornography, and deleting but not writing over these images. U.S. v. Bailey, D.Me.2005, 377 F.Supp.2d 268. Sentencing And Punishment 868

Imposition, at sentencing for receipt of child pornography, of enhancement for materials portraying sadistic or masochistic conduct, was not an abuse of discretion; five of the videos available for distribution from defendant's address depicted prepubescent girls being penetrated by an adult male, which constituted sadistic conduct. U.S. v. Whitright, C.A.9 (Mont.) 2006, 2006 WL 2563474, Unreported. Sentencing And Punishment 698

Written sentence imposing no unsupervised contact with any child as a condition of supervised release for defendant who pled guilty to receiving child pornography in interstate commerce by computer, which conflicted with oral sentence which allowed unsupervised contact with defendant's own son, should be modified so that defendant would not be allowed to have unsupervised contact with any child under the age of 18 other than his own child. U.S. v. Myers, C.A.2 (N.Y.) 2004, 89 Fed.Appx. 298, 2004 WL 350155, Unreported. Sentencing And Punishment 1971(3)

Defendant convicted on a plea of guilty to receiving and distributing computer files containing child pornography would be granted a downward sentencing departure, based on significantly reduced mental capacity, from a Sentencing Guideline range of 33-41 months to a sentence of nine months' incarceration; his obsessive and compulsive behavior supported the conclusion that he was addicted to pornography, or at least unable to control his behavior. U.S. v. Tanasi, S.D.N.Y.2003, 2003 WL 328303, Unreported. Sentencing And Punishment 862

3. Pretrial agreement

Provision in pretrial agreement that required accused to forfeit his laptop computer and 32 floppy disks pursuant to child pornography statute did not violate public policy; provision did not force accused appellant to forego a fundamental right, induce him to commit perjury, nor waive an issue properly retained for appellate review, and was in compliance with statute which required forfeiture of the instrumentalities used in the commission of the charged crime of receiving child pornography. U.S. v. Henthorn, 58 M.J. 556 (N.M.Ct.Crim.App. 2003). Military Justice 994

3A. Plea agreement

Government was not bound to plea agreement it had entered into with defendant with respect to charge of possession of child pornography, where district court had not accepted agreement, and defendant had not detrimentally relied on agreement. U.S. v. Kuchinski, C.A.9 (Mont.) 2006, 469 F.3d 853. Criminal Law 273.1(2)

18 U.S.C.A. § 2252A

4. Weight and sufficiency of evidence

Evidence in prosecution for receiving or distributing child pornography was sufficient to support finding that defendant had knowledge that the visual images he received or distributed were produced using actual minors rather than virtual images; defendant stipulated that various photographs recovered from his file server depicted actual children and were not digital or virtual creations or computer generated images, defendant's computer contained hundreds of child pornography files, neatly organized into categories, thus indicating that he was familiar with the files it contained, and nothing in defendant's ads posted in online chatroom devoted to "preteenrapesex," or in photographs viewed by jury, suggested that the images did not depict real children. U.S. v. Pabon-Cruz, S.D.N.Y.2003, 255 F.Supp.2d 200. Obscenity 17

Defendant "distributed" child pornography when he downloaded pornographic images and videos from a peer-to-peer computer network and stored them in a shared folder on his computer accessible by other users of the network; defendant transferred and dispersed the child pornography to others, in that he freely allowed them access to his computerized stash of images and videos and openly invited them to take or download those items, and defendant understood that the purpose of the shared folder was to allow others to access items he stored in it. U.S. v. Shaffer, C.A.10 (Kan.) 2007, 472 F.3d 1219. Telecommunications 1349

Sufficient evidence established "knowingly" element in prosecution for receiving and possessing child pornography that was based on presence of video computer files on computer in defendant's apartment; there was no showing that anyone else lived in apartment or had access to computer on relevant dates, someone was at apartment on dates that images were downloaded, and defendant was not working on those days. U.S. v. Irving, C.A.2 (N.Y.) 2005, 432 F.3d 401. Obscenity 17

Evidence was sufficient to support finding that defendant was aware of the child pornography saved in his computer, as required in conviction for knowing possession of child pornography; defendant's awareness that the materials were automatically saved to his computer was reasonably established by evidence he used two software programs to try to remove the images. U.S. v. Bass, C.A.10 (Okla.) 2005, 411 F.3d 1198, certiorari denied 126 S.Ct. 1106, 163 L.Ed.2d 917. Obscenity 17

Evidence supported finding that defendant, who pleaded guilty to two counts of transporting child pornography by computer in interstate or foreign commerce, had "expectation" of sexual encounter with 13-year-old girl with whom he believed he was communicating in Internet chat room sufficient to trigger five-level enhancement under Sentencing Guidelines for distribution of child pornography in expectation of receipt of thing of value, including defendant's discussions with "girl," who actually was detective, which gave him ample reason to believe that "girl" would meet him for sexual encounter after they had engaged in sexually explicit discussion and he sent "girl" images depicting sex between adult male and prepubescent girls, and which involved consideration of times and places when meeting could occur. U.S. v. Maneri, C.A.2 (N.Y.) 2003, 353 F.3d 165. Sentencing And Punishment 975

18 U.S.C.A. § 2252A

Finding that defendant had obtained at least some of the 3,400 images of child pornography that were discovered in his possession over the internet, as required to support his conviction under statute he was charged with violating, was supported by sufficient evidence, including evidence that a number of images on defendant's computer were actually available and frequently traded on the internet, that some of the children depicted were in such varied locations as Missouri, Florida, Pennsylvania and United Kingdom, and that defendant's wife had caught defendant viewing adult pornography sites on computer. U.S. v. Dodds, C.A.11 (Ala.) 2003, 347 F.3d 893. Obscenity 17

Sufficient evidence supported inference that defendant was at least willfully blind to high probability that pornographic images he downloaded to his computer were of real children, satisfying knowledge element of charge of possession of child pornography under Child Pornography Prevention Act (CPPA); when told by FBI agents that they were interested in images of "actual kids," defendant had responded by saying he possessed 500 images, indicating required state of mind, images were highly detailed including extremely realistic backgrounds and lighting and close-up images of genitalia impossible to produce virtually, file names indicated under-18 ages, staple appeared in one image indicating its print origin, and images included series and one video. U.S. v. Marchand, D.N.J.2004, 308 F.Supp.2d 498. Obscenity 17

Images alone without expert testimony constituted legally sufficient evidence as to whether an actual child was used to produce child pornography in court-martial of accused charged with sending, receiving, reproducing, and possessing child pornography in violation of the Child Pornography Prevention Act (CPPA). U.S. v. Wolford, U.S. Armed Forces 2006, 62 M.J. 418. Military Justice 1120

In a child pornography prosecution based on violation of the Child Pornography Prevention Act (CPPA), a factfinder can make a determination as to whether actual children were used to produce the images based upon a review of the images alone, without expert testimony. U.S. v. Cendejas, U.S. Armed Forces 2006, 62 M.J. 334. Military Justice 1120

Providence inquiry was sufficient to support accused's guilty pleas to possessing and distributing child pornography in violation of the Child Pornography Prevention Act (CPPA), notwithstanding his contention that the military judge did not sufficiently establish whether he possessed images that were created using actual children, as opposed to virtual images; although military judge did not specifically elicit from accused that the images were not virtual images, colloquy demonstrated that accused was fully aware that the pictures were of actual "identifiable minors" visually depicted in "sexually explicit conduct." U.S. v. Washburne, 59 M.J. 866 (N.M.Ct.Crim.App. 2004), reversed 60 M.J. 396, review granted 60 M.J. 397. Military Justice 987

Interstate commerce element of child pornography charge was satisfied by evidence that computer used to transport images. U.S. v. Vasquez, C.A.9 (Ariz.) 2005, 137 Fed.Appx. 44, 2005 WL 1489021, Unreported. Obscenity 17

18 U.S.C.A. § 2252A

Search warrant affidavit was sufficient to support finding that probable cause existed to search defendant's computer for evidence of child pornography, even without inclusion of incorrect information that defendant's membership in an e-Group website meant he would automatically receive e-mails containing images of child pornography; defendant voluntarily became a member of a group whose clear purpose was to share child pornography, and such images were available to all members of the group. U.S. v. Hutto, C.A.10 (Okla.) 2003, 84 Fed.Appx. 6, 2003 WL 22890954, Unreported. Obscenity 7.6

Evidence was sufficient to support verdict that defendant was guilty of possessing child pornography transported in interstate commerce; defendant admitted to downloading images from the internet, and government provided evidence that some of those images originated in another state. U.S. v. Venson, C.A.5 (La.) 2003, 82 Fed.Appx. 330, 2003 WL 22348922, Unreported. Commerce 82.6; Obscenity 17

Sufficient evidence supported application of cross-reference of sentencing guideline governing distributor of child pornography to defendant, who was convicted of possession of child pornography, and thus defendant's sentence was not product of clear error; defendant was found to possess over 100 images of child pornography on computer, probation department recommended application of cross-reference to base level for distributor of child pornography following defendant's admission of distributing child pornography by mass email on three or four occasions, and there was no evidence that defendant possessed images of children that were non- pornographic so as to create any confusion over what defendant distributed. U.S. v. Borostowski, C.A.7 (Ill.) 2003, 71 Fed.Appx. 592, 2003 WL 21788975, Unreported. Sentencing And Punishment 698

5. Admissibility of evidence

Admission of photographs that defendant stipulated constituted actual child pornography did not prejudice defendant so as to warrant new trial in prosecution for receiving or distributing child pornography and advertising to receive, exchange, or distribute child pornography, even though district court was forbidden by mandamus order from Court of Appeals, due to concern over possible jury nullification, from giving instruction advising of penalties applicable to charged offenses, where the photos were relevant to show that defendant knew the children in the photos were real. U.S. v. Pabon-Cruz, S.D.N.Y.2003, 255 F.Supp.2d 200. Criminal Law 1169.1(10)

Exclusion of defendant's computer expert's proffered testimony, that based upon the file structure of defendant's computer hard drive defendant was on a pornography fishing expedition with no particular calculation toward any particular type of material, other than generally sexually explicit material, was warranted, in prosecution for distribution and possession of child pornography; the proposed testimony went to defendant's state of mind or whether he knowingly committed the charged offenses, and expert witnesses were prohibited from testifying regarding such ultimate issues. U.S. v. Shaffer, C.A.10 (Kan.) 2007, 472 F.3d 1219. Criminal Law 470(3)

18 U.S.C.A. § 2252A

Evidence of defendant's prior molestation of his young male relative was admissible for the permitted purposes of proving motive and identity, in prosecution for possessing, transporting, and advertising child pornography online. U.S. v. Sebolt, C.A.7 (Ill.) 2006, 460 F.3d 910. Criminal Law 371(12)

Evidence was sufficient to support conviction for knowingly transporting and shipping child pornography in interstate commerce by means of a computer; evidence showed that defendant's computer generated a message that pornographic image was "on its way," and special agent testified that for every one of the 53 images he obtained from defendant's file server, he previously received a message that the file was "on its way." U.S. v. Sebolt, C.A.7 (Ill.) 2006, 460 F.3d 910. Obscenity 17

In prosecution for receiving and possessing child pornography that was based on defendant's possession of video computer files, government was not required to present expert testimony proving that children in images were in fact real children rather than computer-generated images; from court's charge, jury understood that it should not vote to convict unless it found the images were made using real children, and video technology was not so far advanced that a jury was incapable of determining whether a real child was used to make a video. U.S. v. Irving, C.A.2 2006, 452 F.3d 110. Obscenity 17

In prosecution for receiving and possessing child pornography that was based on defendant's possession of video computer files, government was not required to also present expert testimony proving that children in images were in fact real children rather than computer-generated images; proof of children's actuality could be made via images alone, i.e. jury, which was instructed as to requirement for "use of a minor," could decide whether actual children were depicted in images. U.S. v. Irving, C.A.2 (N.Y.) 2005, 432 F.3d 401. Obscenity 17

District court's decision, in prosecution of defendant for knowingly possessing material that contained images of child pornography and for knowingly receiving obscene pictures, to admit into evidence 66 of the 3,400 images of child pornography that defendant allegedly possessed was not abuse of discretion, notwithstanding defendant's contention that evidence was cumulative and that the probative value of the evidence was outweighed by its unfairly prejudicial effect, where evidence was relevant to show that images were in fact child, as opposed to adult, pornography, to establish intent on defendant's part to possess such pornography, and to satisfy statute's jurisdictional element, and where district court took precautions to prevent any unfair prejudice by excluding, for cause, jurors who indicated that they would be unable to reach fair verdict after viewing such evidence. U.S. v. Dodds, C.A.11 (Ala.) 2003, 347 F.3d 893. Criminal Law 438(7); Criminal Law 675

Evidence seized from defendant's computer was obtained as a result of police officers' failure to administer Miranda warnings, and was thus inadmissible in prosecution on federal child pornography charges despite his consent to the search; after being arrested on basis of probable cause of a violation of New York statute prohibiting endangering the welfare of a child, defendant revealed the existence of the computer in prolonged interrogation which continued

18 U.S.C.A. § 2252A after officers repeatedly ignored his request for an attorney. U.S. v. Gilkeson, N.D.N.Y.2006, 431 F.Supp.2d 270. Criminal Law 394.1(3)

Defendant was not in custody when he confessed to possession of child pornography and his confession was otherwise voluntary; when the agents arrived at his place of employment, they were not wearing body armor, nor were their weapons visible, when defendant met the agents, they advised him that he did not have to speak with them, though defendant agreed to do so, and he then voluntarily followed the agents to the second-floor conference room, which remained unlocked. U.S. v. Blackwell, C.A.10 (Okla.) 2006, 182 Fed.Appx. 812, 2006 WL 1485048, Unreported. Criminal Law 519(3)

6. Jury instructions

Any prejudice caused by combined effect of admission of photographs that defendant stipulated were child pornography and prosecutor's remarks in closing argument, in prosecution for receiving or distributing child pornography and advertising to receive, exchange, or distribute child pornography, that the jurors should look at the eyes of the children in the pictures and keep the children in mind during deliberation and that these were not victimless crimes, was cured by court's sua sponte giving of a cautionary instruction, and did not warrant a new trial. U.S. v. Pabon-Cruz, S.D.N.Y.2003, 255 F.Supp.2d 200. Criminal Law 1169.5(2)

In instructing members on charge of sending, receiving, reproducing, and possessing child pornography in violation of the Child Pornography Prevention Act (CPPA), it was not error for military judge to use introductory statutory language "any visual depiction, including [a] computer generated image," despite accused's contention that reference to "computer generated image" was unconstitutional. U.S. v. Wolford, U.S. Armed Forces 2006, 62 M.J. 418. Military Justice 794

Error in instructions with regard to the definition of child pornography, and any failure of military judge to more clearly instruct on the knowledge requirement of child pornography charges, were harmless beyond a reasonable doubt; other instructions negated the possibility that the members might have found that the minors depicted in computer images were "virtual" rather than real minors, and as to accused's knowledge that the depictions showed sexually explicit conduct, the images clearly met the statutory definitions of such conduct. U.S. v. Tynes, 58 M.J. 704 (Army Ct. Crim. App. 2003), affirmed in part, reversed in part 60 M.J. 329, review granted 60 M.J. 331. Military Justice 794; Military Justice 1426

7. Extraterritoriality

Even assuming that "interstate or foreign commerce," in Child Pornography Prevention Act's provision prohibiting transportation of child pornography in such commerce, did not include within its scope United States territories, defendant's transporting child pornography through Virgin Islands while en route from Netherlands Antilles to Dominican Republic was within Act's scope; Act made clear that United States could not be used as conduit for commerce in child pornography between foreign nations. U.S. v. Polanco, C.A.3 (Virgin Islands) 2006, 451 F.3d

18 U.S.C.A. § 2252A

308. Obscenity 2.5

Accused's guilty plea to possessing child pornography while deployed to Bahrain, in violation of the Child Pornography Protection Act (CPPA), under clause three of the general article was improvident because the CPPA does not apply extraterritorially, and while some part of the offense occurred in the United States, accused claimed during plea inquiry he did not knowingly possess the child pornography until he viewed it in Bahrain. U.S. v. Hughes, 62 M.J. 621 (C.G.Ct.Crim.App. 2005). Military Justice 987

Child Pornography Prevention Act (CPPA) does not have extraterritorial application. U.S. v. Martinelli, U.S. Armed Forces 2005, 62 M.J. 52, reconsideration denied 62 M.J. 332. Military Justice 523

Section of the Child Pornography Prevention Act prohibiting the knowing receipt by means of computer, of child pornography that has been transported in foreign commerce, applied extraterritorially to offenses committed by accused while he was stationed in Germany. U.S. v. Martens, 59 M.J. 501 (A.F. Ct. Crim. App. 2003), review granted in part 59 M.J. 30, affirmed as amended 62 M.J. 369. Military Justice 523

8. Foreign commerce

Accused's plea of guilty to specification alleging that accused received on divers occasions child pornography that had been transported by computer in foreign commerce in violation of the Child Pornography Prevention Act was not provident, where inquiry of accused did not provide a factual basis for the military judge to find that the child pornography had been transported in foreign commerce; at no time did accused state that the images in question traveled to, from, or through the United States. U.S. v. Martens, 59 M.J. 501 (A.F. Ct. Crim. App. 2003), review granted in part 59 M.J. 30, affirmed as amended 62 M.J. 369. Military Justice 987

9. Mail

Defendant's request that alleged mother of minor girls send pornographic pictures of girls over the internet to him was part of common scheme and course of conduct to his conviction for interstate transportation of child pornography related to his decision to send pornographic pictures involving minor girls to mother eight days after his request, and thus was relevant to charged conduct for purpose of sentencing enhancement under cross-reference in sentencing guideline for certain child pornography trafficking; internet chat room in which defendant made acquaintance with mother was aimed at exchanging preteen pornographic material, defendant repeatedly offered to make exchanges, and defendant expressed anxiousness in seeing mother's pictures in same e-mail in which he sent pictures. U.S. v. Garcia, C.A.10 (Wyo.) 2005, 411 F.3d 1173. Sentencing And Punishment 677

Controlled delivery of videotapes by postal inspector satisfied mailing requirement of statute prohibiting receipt or distribution of child pornography in interstate or foreign commerce, even if package was out of regular stream of the mail; package constituted "mail" inasmuch as it was

18 U.S.C.A. § 2252A delivered by an official post office agent, had the proper postage, and was sealed and addressed to defendant. U.S. v. Venson, C.A.5 (La.) 2003, 82 Fed.Appx. 330, 2003 WL 22348922, Unreported. Commerce 82.6; Postal Service 32

10. Lasciviousness

If an image of a minor displays the minor's naked genital area, there is probable cause to believe that the image is lascivious, for purposes of a prosecution for possession of child pornography, unless there are strong indicators that it is not lascivious. U.S. v. Hill, C.D.Cal.2004, 322 F.Supp.2d 1081. Obscenity 7.6

11. Discovery

Subject to appropriate regulation by the court, defendant, indicted for possession of child pornography, was entitled to obtain two "mirror image" copies of the computer storage media analyzed by government's expert; media were material to preparation of the defense, government intended to use them in its case-in-chief, and they were obtained from defendant, and defendant would be seriously prejudiced if his expert and counsel were forced to access the media only in the government's lab. U.S. v. Hill, C.D.Cal.2004, 322 F.Supp.2d 1081. Criminal Law 627.6(2)

12. Indictment

Indictment, in prosecution for knowing possession of child pornography, was sufficient to put defendant on notice of the charges, despite fact it identified images found on his computer as .bmp files rather than jpeg files, which was how the files existed in the computer before the file type identification was changed by the forensic examiner's software; images came from defendant's computer, the numerical identification in the indictment was identical to what existed in the computer, and each count included a description of the image involved. U.S. v. Bass, C.A.10 (Okla.) 2005, 411 F.3d 1198, certiorari denied 126 S.Ct. 1106, 163 L.Ed.2d 917. Indictment And Information 71.4(12)

18 U.S.C.A. § 2252A, 18 USCA § 2252A

Current through P.L. 110-17 approved 04-09-07

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18 U.S.C.A. § 2252A