Sexual Exploitation Crimes Against Children

Sexual Exploitation Crimes Against Children In This Issue September 2011 Volume 59 Number 5 Introduction to the Sexual Exploitation Crimes Against Children Issue of the USA Bulletin . .1 United States Department of Justice By Paul R. Almanza Executive Office for United States Attorneys Washington, DC Meeting the Government’s Discovery Obligations in Child Exploitation 20530 Cases . 3 H. Marshall Jarrett Director By Jeffrey Zeeman Contributors' opinions and statements should not be considered an endorsement by Getting Your Evidence into Evidence in a Digital World . 14 EOUSA for any policy, program, or service. By Damon King and Meredith Owen The United States Attorneys' Bulletin is published pursuant to 28 Understanding Probable Cause and Overcoming Staleness Issues in Child CFR § 0.22(b). Pornography Cases . 27 The United States Attorneys' Bulletin is published bimonthly by By Chantel Febus, Jason Claude, and Kimberly Singer the Executive Office for United States Attorneys, Office of Legal Education, 1620 Pendleton Street, Columbia, South Carolina 29201. SORNA: A Primer . 42 By Bonnie Kane Managing Editor Jim Donovan Social Networking Sites: Breeding Grounds for “Sextortion” Prosecutions Law Clerk Carmel Matin . .54 Internet Address By Darcy Katzin, Mi Yung Park, and Keith Becker www.usdoj.gov/usao/ reading_room/foiamanuals. html Emerging Issues in the Extraterritorial Sexual Exploitation of Children . 59 Send article submissions and By Anitha S. Ibrahim, Ed McAndrew, and Wendy Waldron address changes to Managing Editor, United States Attorneys' Bulletin, National Advocacy Center, Units of Prosecution in Child Pornography Cases and Rebutting the Office of Legal Education, 1620 Pendleton Street, Argument that Possession of Child Pornography is a Lesser Included Columbia, SC 29201. Offense of Receipt . 68 By Andrew McCormack Beyond the Child Pornography Sentencing Guidelines: Strategies for Success at Sentencing . .76 By Alexandra R. Gelber The Fallacy of Simple Possession: The Impact of Targeting, Charging, and Plea Bargaining at Sentencing . 86 By Drew Oosterbaan Introduction to the Sexual Exploitation Crimes Against Children Issue of the USABulletin Paul R. Almanza Deputy Chief Child Exploitation and Obscenity Section In the five years since the Child Exploitation and Obscenity Section (CEOS) last prepared an issue of the U.S. Attorney’s Bulletin, there have been many changes in how offenders commit these crimes and in how the federal law enforcement community has responded. There have also been changes in the legal landscape, most notably the increasing extent to which judges are imposing sentences below the ranges established by the existing child pornography sentencing guidelines. This issue of the Bulletin reflects and responds to many of these changes and is intended as a guide and resource for federal child exploitation prosecutors in their continuing work to hold child sexual offenders accountable for their actions. As the continuing evolution of the Internet has made it so much easier for legitimate users to exchange ideas and information with each other, so too has it greatly expanded opportunities for offenders to find and distribute child sexual abuse images and to share with each other their mutual interest in sexually exploiting children. These developments have led to a pandemic of child exploitation crimes, ranging from those committed by relatively unsophisticated offenders, such as those using only Peer-to-Peer technologies to receive and to distribute child pornography, to those committed by extremely sophisticated offenders, such as those who use complex technologies such as encryption and anonymizers to commit child exploitation offenses in concert with one another as part of international online groups dedicated to child exploitation. Federal law enforcement has responded to these developments by increasing its coordination with state, local, tribal, and international law enforcement, and by developing investigative strategies that keep abreast of the increasing sophistication shown by offenders. Federal prosecutors have taken a lead role in coordinating these efforts through the Department’s Project Safe Childhood (PSC), which began as an effort to address technology-facilitated child sexual exploitation crimes but was expanded this year to cover all federal child sexual exploitation crimes, including offenses such as the prostitution of children here in the United States. PSC has achieved a great deal since its launch in 2006, and we at CEOS look forward to working with all of our PSC partners to continue the fight against child sexual exploitation. Despite the success of PSC, there has been growing criticism of the existing child pornography sentencing guidelines, which are deemed by some judges to be flawed and unhelpful in determining the appropriate sentences for child pornography defendants, especially those convicted of child pornography trafficking and possession offenses. Prosecutors need to adapt their sentencing strategy to better demonstrate in court the seriousness of these crimes and the risk these defendants pose to society, and to persuade skeptics, who may be judges or interested members of the public, that these offenses merit appropriate punishment. Two articles, discussed in more detail below, provide guidance to federal 2 UNITED STATES ATTORNEYS’ BULLETIN SEPTEMBER 2011 prosecutors on exactly how to do that during the entire prosecution of a case, as well as during the presentation of the government’s sentencing case. Overall, the articles in this issue of the Bulletin cover three general topics: • Four articles cover legal issues that federal prosecutors should be aware of as they handle individual cases. These articles discuss topics such as meeting the government’s discovery obligations in child pornography cases, admitting electronic communications, probable cause and overcoming staleness arguments in child pornography cases, and information prosecutors should know concerning the Sex Offender Registration and Notification Act. • Two articles deal with new developments. One covers offenders’ increasing use of social networking sites to commit sextortion, while the other examines emerging issues in the extraterritorial sexual exploitation of children, otherwise known as child sex tourism, through three case studies. • Three articles provide guidance on fundamental prosecutorial functions such as deciding what to charge and presenting the best case possible from the government’s perspective. The first examines the proper units of prosecution in child pornography cases, which will assist federal prosecutors as they draft charging documents. The second, briefly mentioned above, provides prosecutors with a roadmap for an effective sentencing presentation that goes beyond the sentencing guidelines. The third, also briefly mentioned above, explodes the notion that there ever could be a true “simple possession” case, and asks prosecutors to base their decisions on how to handle a case upon evidence demonstrating the full extent of the offenders’ conduct and to ensure that the court is aware at sentencing of the seriousness of the offense and the risk posed by the offender. The recent expansion of Project Safe Childhood to cover all federal child exploitation offenses and the development of the National Strategy for Child Exploitation Prevention and Interdiction underscore the Department’s continuing commitment to protecting our children from sexual offenders. This issue of the Bulletin, which I have had the privilege of editing, will help further that commitment by giving federal prosecutors additional information that will help them more effectively prosecute child exploitation cases. Paul R. Almanza Deputy Chief Child Exploitation and Obscenity Section SEPTEMBER 2011 UNITED STATES ATTORNEYS’ BULLETIN 3 Meeting the Government’s Discovery Obligations in Child Exploitation Cases Jeffrey Zeeman Trial Attorney Child Exploitation and Obscenity Section I. Introduction Prior to passage of the Adam Walsh Child Protection and Safety Act of 2006 (the Act), 42 U.S.C. §§ 16901–16991 (2006), Federal Rule of Criminal Procedure 16(a)(1)(E) governed, without statutory qualification, the production of evidence in child pornography cases. Although Rule 16 contains no provisions tailored to the discovery of child pornography, most courts, cognizant of the potential harm to victims from redistribution of pornographic materials, permitted the Government to provide the defense with access to such evidence in lieu of providing the defense with its own copy of the materials. The Act codified this principle in 18 U.S.C. § 3509(m) by explicitly prohibiting the Government from providing copies of evidence of child pornography so long as that evidence is made “reasonably available” to the defense. The defense bar has repeatedly challenged the Act on constitutional grounds, but none of those challenges have proven successful. Two courts, however, did mandate Government production of evidence on the grounds that the Government had failed to make that evidence “reasonably available” as required by statute. This article discusses the courts’ opinions in more detail by reviewing the factual and legal analysis of the two cases, United States v. Knellinger, 471 F. Supp. 2d 640 (E.D. Va. 2007) and United States v. Winslow, No. 3:07-CR-00072-TMB-DMS (D. Alaska Jan. 28, 2008), available at http://www.fd.org/pdf_lib/Discovery_AW_Winslow_Unconstitutional.pdf. See infra Part IV.A–B. Since the issuance of those decisions,

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