Article Bank # A-90
NOTE: The text of the footnotes appear at the end of the document.
DEFENDING INTERNET CHILD PORNOGRAPHY CASES
A Few Practical Suggestions
CJA Practical Skills Seminar
Boston, MA
November 2, 2001
David Beneman, Esq.*
Maine CJA Resource Counsel
Levenson Vickerson & Beneman
P.O. Box 465
Portland, Me 04112
207-775-5200 ext 104
beneman@maine.rr.com
Most new child pornography cases will be prosecuted under 18 U.S.C. § 2252A.[Footnote 1] 18 U.S.C. §2252A makes it illegal to knowingly possess or transfer through the use of interstate commerce child pornography. Section 2251 involves the creation of child pornography. Sections 2252 and 2252A apply to possession, transportation, and dissemination of child pornography.
Elements
The “standard” 2252A case has three elements.
1. Knowing possession or dissemination, of
2. Child pornography, in
3. Interstate Commerce
Knowing Possession
The word knowingly means “the act was done voluntarily and intentionally, not by mistake or accident.” U.S. v. Tracy, 36 F.3d 187, 194-95 (1st Cir. 1994)(First Circuit Pattern Instruction 4.06). There is a long running debate on the mens re component of the crime. Does “knowingly” modify just the word “possesses” to require proof of knowing possession (as in firearm cases, see for example U.S. v. Smith, 940 F.2d 710 (1st Cir. 1991)), or does knowingly extend to all the definitional elements of child pornography ? In U.S. v. Gendron, 18 F.3d 955 (1st Cir. 1994) the defendant raised that very issue. The court found that knowingly applied to the content including the minority of the person depicted.
the statute’s word “knowingly” modifies not only the word “receives, ” but also the statute’s description of the received” material’s pornographic content. That is to say, we understand the statute to require for conviction that the government prove not only that the defendant “knowingly received” material that he knows contains a “visual depiction” of a person “engaging in sexually explicit conduct,” but also that the defendant knows that the person so depicted is a minor.” Gendron at 958.
The Supreme Court went on to rule in U.S. v. X-Citement Video, Inc. 115 S.Ct. 464 (1994) that the use of the term “knowingly” in section 2252 requires proof of the defendant’s knowledge that the individual depicted was a minor.
New section 2252A has the same knowingly language as 2252, but adds an affirmative defense that those depicted were adults. 2252A(c)(2). The new statue also broadens the definition of minors to include “appear to be minors”. Does that change the situation ? Apparently not based on the only reported case to date touching on this issue, United States. Fox, 248 F.3d 394 (5th Cir. 2001). [Footnote 2]
We have already noted that the statute itself provides an affirmative defense available to those who mail, transport, receive, sell, distribute or reproduce sexually explicit materials if the person depicted actually was an adult at the time the images were created. n43 In addition, the government must prove in each instance that the defendant knowingly received sexually explicit depictions of minors or those who appear to be minors. Thus the statute’s scienter requirement, which applies to the age of the persons depicted as well as to the nature of the materials, “limits the scope of the [statute] because the desire for prosecutorial efficiency dictates the vast majority of prosecutions . . . would involve images of prepubescent children or persons who otherwise clearly appear to be under the age of 18.” [Footnote 3] We also agree with the First Circuit that the danger of persons being convicted under § 2252A of possessing sexually explicit material of adults who look or dress in a youthful manner is “overstated” in light of Congress’s determination that purveyors of child pornography “usually cater to pedophiles, who by definition have a predilection for pre-pubertal children.” Fox at 404 (emphasis added).
Child Pornography
The term “child pornography” is defined in relevant part as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where . . . such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct. 18 U.S.C. § 2256(8)(B)(emphasis added).
Minor
Minor means any person under the age of 18. § 2256(1). What does a person under 18 look like ? There seems to be no answer. How does a defendant know if an image appears under 18 ? Again no answer. This is an element so the fact finder must decide the issue so this goes into jury instructions. Stress age 18, not the word minor or children. See Gendron, 18 F.3d 955 at 967-968 on jury instruction and preserving the issue.
Sexually Explicit Conduct
The statute defines “sexually explicit conduct” as actual or simulated:
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any person 18 U.S.C. § 2256(2).
The first four definitions are relatively clear. It is the fifth which adds one more layer of confusion as Congress did not expressly define “lascivious exhibition of the genitals or pubic area.”
Lascivious Exhibition
The First Circuit has followed the six factors articulated in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d sub nom., United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987). U.S. v. Amirault, 173 F.3d 28 (1st Cir 1999); U.S. v. Hilton, 257 F.3d 50 (1st Cir 2001). Those factors are:
(1) whether the genitals or pubic area are the focal point of the image;
(2) whether the setting of the image is sexually suggestive (i.e., a location generally associated with sexual activity);
(3) whether the child is depicted in an unnatural pose or inappropriate attire considering her age;
(4) whether the child is fully or partially clothed, or nude;
(5) whether the image suggests sexual coyness or willingness to engage in sexual activity; and
(6) whether the image is intended or designed to elicit a sexual response in the viewer. See Dost, 636 F. Supp. at 832.
“These so-called “Dost factors” are not exhaustive: other factors may be relevant, depending upon the particular circumstances involved. Amerault at 31.
We believe that the Dost factors are generally relevant and provide some guidance in evaluating whether the display in question is lascivious. We emphasize, however, that these factors are neither comprehensive nor necessarily applicable in every situation. Although Dost provides some specific, workable criteria, there may be other factors that are equally if not more important in determining whether a photograph contains a lascivious exhibition. The inquiry will always be case-specific. Amerault at 32.
Who Decides ?
Child pornography is an element of the offense so the finder of fact needs to decide that a specific image is child pornography beyond a reasonable doubt. This means jury instructions on th Dost factors. Many of the reported case were bench trials or conditional pleas so there is not a very large body of jury instructions. Sometime the defense has tried to stipulate that the images are child pornography. U.S. v. Dean, 135 F. Supp. 2d 207 (D. Me, 2001). The government has a right to introduce the images but recognizing their potential inflammatory nature the court minimizes use of the photos. During trial they are to be in envelopes and referred to by exhibit number. Id.
DEFENSES
Suppression Motions. Need to fight the seizure of the computer. Same law as other cases. Sample motion is attached. There is a fair amount of First circuit case law related to computer search issues. See U.S. v. Butler, 151 F. Supp. 2d 82 (D. Me. 2001)(no 4th amendment standing when images found on University computers); U.S. v. Crosby, 106 F. Supp. 2d 53 (D. Me, 2000)(sufficiency of warrant application and lack of picture viewing by magistrate); Unite States v. Brunette, 256 F.3d 14(1st Cir 2001)(Warrant application should include copies of images which a magistrate should review, government saved in this case by Leon);U.S. v. Grant, 218 F.3d 72 (1st Cir. 2000)(probable cause and standard to generate a Franks hearing); U.S. v. Upham, 168 F.3d 532 (1st Cir 1999)(attack on warrant and particularity requirement, deleted images are covered by the phrase”unlawful images”).
Inadvertence, or Mistake can be a defense to the knowing element. Argue that merely clicking on an address or an item does not show defendant intended to possess child porn. This can apply when there are a relatively small number of child images, or when there is a law percentage of child images to other adult porn images.
Lack of Knowledge. This is far ranging. Did not know that web site visited was pornographic. Did not know the images would be saved in my computer. Did not know the person depicted was or even appeared under age 18. Did not know the image was pornographic. See U.S. v. Tucker, 150 F.Supp 2d 1263 (D. Ut. 2001)(decribing knowing possession standard).
Hacker Defense. A third party gained access to my computer and the images are from them not me. See the description below of viruses. The programs frequently referred to are “sub-7” and “back door”. The hacker defense is raised with counsel by many defendants but my anecdotal search has failed to locate any defense attorney who has had a case where a hacker could be shown to be the source of the contraband images.
Someone Else has access to my computer, it is not me. Fact specific defense. This is the kind of situation where the dates and times the files were created can be critical. Tough to claim it is someone else for files at 11:30 pm if computer is in client’s bedroom.. What if computer is in the family room and teenage or old children or house mates ? What if images are on a work computer open to others, a school computer, a network…
Entrapment. Favored by those caught through “chat room” and e-mail stings. For the law see U.S. v. Gendron, 18 F.3d 955, 960-61 (1st Cir. 1994). Propensity evidence is always a potential issue. You might keep sexual stuff out on 403 or relevance only to have it back in if defense is entrapment.
Not Child Pornography. Images can be “offensive” but not pornographic. Besides depicting those under 18, the “sexually explicit conduct” element must be proven beyond a reasonable doubt. Assuming the images do not show a sex act, the government will be trying to prove under the “lascivious exhibition of the genitals or pubic area.”. First, this requires that the image show the genitals. If the crotch area is covered argue that image does not count. U.S. v. Hilton, 257 F.3d 50, 58 (1st Cir. 2001)(this is the same Hilton case after remand an a trial)(although the setting is sexually suggestive, the subjects genitalia are not visible” Id. 58. Consider motions in limine to exclude images that do not count as a matter of law. (Note, in an entrapment defense these may come back in as “propensity” evidence”. Assuming genitals are shown, then move on to the “Dost” criteria. Not all photos of naked kids are pornography. How many family albums have pictures of kids in the bath tub, naked kids on the beach, the unclad child in some funny or silly situation ? How about all the artistic images of children. Why is a naked young girl on the beach or in a field of flowers pornographic ? The First Circuit has supported such arguments. See the analysis in Hilton, 257 F.3d 50, 57-58. “Nudity in and of itself does not constitute a “lascivious display”. Id. That makes a nice jury instruction. See also U.S. v. McKelvey, 203 F.3d 66 (1st Cir. 2000)(vacating a plea over issue of the photo and three or more as required by “old” 2252).
Challenge to the Statue. The First circuit has rejected constitutional challenges, U.S. v. Hilton, 167 F.3d 61 (1st Cir, 1999) reversing the Maine district court. U.S. v. Hilton, 999 F. Supp. 131 (D. Me. 1998). The 9th circuit ruled differently, finding the statute vague and over broad. Free Speech Coalition v. Reno, 198 F.3d 1083, 1095-96 (9th Cir. 1999), cert granted sub nom. Ashcroft v. Free Speech Coalition. The case was argued on Tuesday, October 30, 2001 and the news accounts report a lively oral argument and some chance of success. Be sure to continue to include a challenge to the statute, a proposed jury instruction, and a rule 29 motion so if 9th circuit is upheld you will not have a waiver or “plain error” standard to contend with on appeal. (Let’s learn from Apprendi jurisprudence).
Rule of Lenity. See U.S. v. Dauray, 215 F.3d 257 at 264 (2nd Cir, 2000)( reversing conviction under older 3 images law). Consider the lenity argument in conjunction with the knowing image depicts a minor requirement when the age from the images are unclear.
Interstate Commerce
As in gun cases, the courts have made this element very easy for the government. There is a very good decision, U.S. v. Henriques, 234 F.3d 263 (5th Cir. 2000) vacating a conviction for lack of interstate proof, but that was under the older statute requiring at least 3 images. With just one image the government need only prove interstate commerce once. See U.S. v. Payne, 2001 U.S. Dist. Lexis 6456 (W.D. Tx, 2001). The First Circuit and the Maine District Courts have rejected post-Lopez commerce clause challenges. U.S. v. Robinson, 137 F.3d 652 (1st Cir. 1998). The issue of jurisdiction is a case by case issue. Robinson at 656. Congress is authorized to regulate the “channels of interstate commerce” which include the internet, although a photograph “handed over a backyard fence might be different”. U.S. v. Butler, 151 F. supp 2d 82 at 85, and n..3 (D. Me, 2001). The “knowingly” element does not extent to knowledge that the mater passed through interstate commerce. Robinson at 655. There has been some litigation over just what it is that must pass through interstate commerce, the image or the medium carrying the image. U.S. v. Lacy, 119 F.3d 742 (9th Cir. 1997). So long as the images themselves, ore the materials used to create the images, moved in interstate commerce, the element is generally satisfied. Lacy at 749. See U.S. v. McKelvey, 203 F.3d 66, n.4 (1st Cir. 2000) for a discussion of the issue and reserving on the issue.
Penalty Provisions
5 year max for possession. The “knowing” possession of a document or medium which contains “an image of child pornography” that has traveled in interstate commerce by any means, including by computer, carries a potential maximum penalty of five years, or with a prior sexually related conviction, a minimum mandatory of two years and a maximum of ten years. 18 U.S.C. § 2252 A (b)(2). The statute graciously provides an affirmative defense for those who possess three or less images and promptly destroy them. There are no reported cases on this affirmative defense.
15 year max for distribution. The more serious allegations carry up to fifteen years if the material involved transport, receipt or distribution, reproduction for distribution, sale or possession with intent to sell. If the defendant has a prior sexually related offense, a minimum mandatory sentence of five years with a maximum of thirty years. § 2252 A (b)(1). That makes these Class C felonies or Class B felonies if the aggravator applies. See 18 U.S.C. § 3559(a). [Footnote 4]
Bail
I will share with you a closely guarded secret. These cases trigger the “statutory presumption” just like 10 year drug offenses. You need to be aware, but no need to spread the word on this as to date probation and the Court seemed to have overlooked the analysis which requires a close reading of the statute. The child pornography statutes are in Chapter 110 of Title 18 U.S.C. The government may move for no bond for cases involving a “crime of violence”. 18 U.S.C. § 3142(f)(1)(A). Crime of violence is defined in 3156(a)(4)(C) as “any felony under… Chapter 110”. Post conviction bail is almost never available. 3143(a)(2). I point this out so it can be explained to the client as after a Rule 11 there is not supposed to be bail although historically many courts have continued bail and in many cases allowed self reporting.
Bond in Exceptional Circumstances
18 U.S.C. §3145(c) allows the court to release a defendant, post conviction, under appropriate conditions upon a clear showing by the defendant that there are exceptional reasons why his detention would not be appropriate. It is generally recognized that determination as to whether post-plea release is available rests with the district court. U.S. v. Cantrell, 888 F. Supp. 1055, 1056 (D. Nev. 1995). The “exceptional reasons” provision of §3145(c) “was added to the Bail Reform Act as an avenue of relief from the mandatory detention provisions.” Id. (citations omitted).
The consensus which appears to have developed in those courts which have examined the issue is that “exceptional circumstances” should be given its plain meaning, that is a situation that is out of the ordinary, rare, or uncommon that sets the defendant apart from other similarly situated defendants. United States v. Koon, 6 F.3d 561, (9th Cir. 1993) denying rehearing en banc (Rymer concurring 563-64 and Reinhardt dissenting 565-8). In that respect, the approach should be somewhat similar to the Koon analysis for guideline sentencing departures. U.S. v. Koon, 518 U.S. 81(1996). The Second Circuit has defined “exceptional circumstances” as “unique combination of circumstances giving rise to situations that are out of the ordinary.” United States v. Cintron, 108 F.3d 1370, 1997 WL 120567 (2nd Cir. 1997) (unpublished disposition, citing United States v. DiSomma, 951 F.2d 494, 497 (2nd Cir. 1991). The early case of United States v. Bayko 774 F2d 516, (1st Cir. 1985) is not very helpful.
UNDERSTANDING COMPUTERS
Understanding how a computer works is essential for analyzing and defending an internet child pornography case. While the contraband images could be obtained on a floppy disk or CD, the bulk of the prosecutions involve obtaining the images via the internet.
Internet Service Provider
Connection to the internet is accomplished through the use of an internet service provider (ISP). The most well known ISP is America Online (AOL), but there are literally thousands of ISPs available. In some cases the government has subpoenaed records concerning the defendant’s account with an ISP. In other cases they do not. Always be sure in your discovery requests to seek such records from the government. ISP records often can show when a client is and is not “logged on,” meaning connected. Generally, I would only subpoena such records if the connection times or extent of log on was at issue. For example, if a client claimed that they never or rarely used a certain internet account, obtaining the records could be helpful.
Web Browser
The software used to view images over the internet is referred to as the internet browser. The two major browsers are Internet Explorer and Netscape. Both products are available in multiple versions, but for our purposes there are very few differences either in the versions or in what they do. There are several very important things to understand about a browser. First of all, the browser keeps track of a history, which is a list of where the user has been. Second, the browser automatically backs up, or makes a copy, of images and saves them in a cache or temporary file. Finally, many websites place a small bit of code, called a cookie, in the user’s computer. Each of these three areas of user definable parameters on what is and is not saved, how often the saved items are emptied, and where the saved items are stored.
History Files
History files are like a client’s footprints in the snow. They track where the client has gone from site to site. In Netscape, on the browser toolbar, go to Communicator, Tools, History. This will show the full history including the site visited and the time. The settings for the duration of history can be found by going to the toolbar, Edit, Preferences, Navigator. In the screen that comes up there will be a section marked History and the number of days that history remains in the computer can be set there. There is also a button to allow you to clear your history. Do not be fooled by the “short” history available right on the browser main screen.
In Internet Explorer, there is a History icon directly on the toolbar. Clicking on that brings up the history that can be sorted by view or can be searched. The history settings in Explorer can be viewed by going to Tools/ Internet Options/General. There the settings are found for history as well as a clear history button.
Internet Temporary Files or Cache
The cache memory or internet temporary files are often the most incriminating areas of seized computer. When a web browser displays an image, it takes a copy of that image and saves it on the computer’s hard drive. The location the image is saved under depends on which browser is being used. Netscape saves the temporary image under a file called cache. Internet Explorer saves the temporary images under a file called temporary internet files. These files can be very extensive. Most internet pornography is in one of two formats, graphic interchange format (GIF) or joint photographic experts group (jpg). There are many other formats for images, but these are the most common two. To view the actual cache files in Netscape, you need to enter your hard drive either through My Computer or Windows Explorer (not to be confused with Internet Explorer, thank you very much Microsoft). In the C drive, you need to locate where Netscape resides. One way for finding that out is to go to the Netscape icon in the program menu, highlight it, right click, and go to properties. That will give you the address on the C drive for the Netscape program. In Explorer, go to the location of the program, then go to Users and the directory exists either with the name of the multiple users or it just says cache. Double clicking on cache will bring up copies of all of the files in the cache memory. If you left click on a .jpg file and thumbnail (small) copy of the actual image will appear on the left side of your screen. The cache file can be sorted or viewed a number of different ways. Go to View and then click details and you will see the file name, file size, file type, date and time modified. This can then be sorted by clicking on the heading. If you click on modified it will sort your files for you most recent to oldest. If you click on size it will sort your files from smallest to largest. If you click on type it will group your files by file type. All of this provides ways for you to analyze data contained within the cache. To understand a client’s cache settings in Netscape, at the main browser menu, go to Edit, Preferences, Advanced, Cache. The screen will show you how much memory cache as well as how much disk cache is provided, as well as giving you the disk cache folder, so that you will know how to find how cache is stored on the computer. This screen also lets you clear out both your memory and your disk cache.
Internet Explorer saves its images under a file called temporary internet files. These can be accessed using the Start button, go to Programs, Windows Explorer, C drive, and double click on Windows. Then all of the Windows directors come up, and scroll down to Temporary Internet Files, double click on it and the full range of files will come up. Again, these can be sorted by name, grouped by address, by file type, by size, access date, modified date, and several other categories. These can also be exported into an Excel spreadsheet. In a recent case there were over 11,000 images contained in the client’s temporary internet files. We had the government provide that on disk, and my computer helper was able to import that directly into an Excel spreadsheet, allowing me to group and analyze the data for certain patterns I was seeking. Particularly helpful is the ability to click on Internet Address and have a grouping by website. To see check on the settings are for temporary internet files, go to Internet Explorer, Tools, Internet Options. (This is the same location as the history settings.) At this location you can delete cookies, delete files, and also find the settings which include how much disk space to allow. You can also view files off this page.
Cookies
Cookies are small bits of information that some websites deposit on your computer. The debate over the advantages and disadvantages of cookies is endless. For our purposes, cookies again leave a footprint on a computer hard drive showing, at least circumstantially, that an individual has been to a certain website. Cookies are viewed in much the same way as history and temporary internet files. In Netscape, return to the Netscape directory using the Windows Explorer as above. Under the Users’s name there is a file marked txt. Double clicking on that will bring up the cookies screen. In Internet Explorer, the cookies screen can be viewed again using Windows Explorer by going to C drive, Windows, cookies.
Viruses
It is important in any computer related case to be sure that a virus check has been done. Viruses are the generic term for types of computer programs that do bad things to computers. One frequently examined area in pornography cases is the potential existence for a virus known as a Trojan horse. Perhaps mirroring real life, it is easier to contract a computer virus in surfing pornography sites than many other types of website. A well constructed Trojan horse virus can be quite insidious. Certain viruses will notify the hacker that the victim is online and hence, available. One important caveat, the infected computer must actually be logged on through an ISP in order for a third party to utilize it. A very technical program might allow a hacker to cause a computer to connect to the internet, but nothing that sophisticated to my knowledge has ever been found in an internet pornography case. The users most open to a hacker defense are those who are online for significant periods of time, online at fairly regular and set times, or online almost constantly, such as cable modem connections. A computer that is online can be found by a hacker using a number of different programs. Internet programs communicate through ports which are sort of like radio frequencies. A scan can be done of ports looking for an open one in which to enter a person’s computer. This is sometimes called a “back door”. Using such an approach, a hacker can also gain access to passwords and screen names. Further, a hacker could access the computer’s hard drives as though they were their own. In a computer containing internet pornography which the defendant assures you was not gathered by him or her, one possible defense is this back door hacker theory. For further information on viruses, including Trojan horses, look at the website of the major anti-virus programs, such as, www.symantec.com, the makers of Norton products, or McAfee at www.mcafee.com. The services of a forensic computer expert are best used in a case where a hacker defense is anticipated as the solid evidence is normally found in the Windows registry files whose view and editing is beyond that of the average computer user.
EnCase Software
The primary forensic software used by the government in these matters is called EnCase.
Some information is available at the web site:
http://www.guidancesoftware.com/html/how_encase_works.aspxl
While the product appears to be available on the open market, in reality it is only sold to government and law enforcement agencies. EnCase makes a “bit stream image” of the source drive without opening Windows. This preserves the settings in the seized computer so they are unaltered. The disadvantage for the defense is the proprietary nature of EnCase. Our experts do not have it and often have to use the copies or reports provided by the government. EnCase has an integrated picture viewer that automatically locates, extracts and displays most known graphical image files. In the “Gallery View” the examiner can quickly see images, including deleted images, all in a thumbnail view. The examiner can then bookmark the pictures relevant to the case and immediately integrate those images into the EnCase report. EnCase allows viewing of deleted files.
The software produces a multitude of reports which should be provided in discovery. Note the reciprocity requirement of rule 16(a)(1)(C), (D) and (E). You will not be getting the images as they are contraband, but the reports are helpful. You then need to view the images which frequently must be done at the agent or AUSA office since they have both the images and the software. I have always been allowed to bring a client with me and to be alone while viewing these. If the client were detained, special arrangements will have to be made.
Appendix
18 U.S.C. § 2252A (2001)
§ 2252A. Certain activities relating to material constituting or containing child pornography
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 reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer;
(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
(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; or
(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, shall be punished as provided in subsection (b).
(b) (1) Whoever violates, or attempts or conspires to violate, paragraphs (1), (2), (3), or (4) of subsection (a) shall be fined under this title or imprisoned not more than 15 years, or both, but, if such person has a prior conviction under this chapter, chapter 109A, or chapter 117 [18 UCS §§ 2251 et seq., 2241 et seq., or 2421 et seq.], 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 5 years nor more than 30 years.
(2) Whoever violates, or attempts or conspires to violate, subsection (a)(5) shall be fined under this title or imprisoned not more than 5 years, or both, but, if such person has a prior conviction under this chapter, chapter 109A, or chapter 117 [18 UCS §§ 2251 et seq., 2241 et seq., or 2421 et seq.], 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 2 years nor more than 10 years.
(c) It shall be an affirmative defense to a charge of violating paragraphs (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.
(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
(B) reported the matter to a law enforcement agency and afforded that agency access to each such image.
Ninth Circuit Pattern Criminal Instructions, West, 2000
8.153 SEXUAL, EXPLOITATION OF CHILD
TRANSPORTATION OF CHILD PORNOGRAPHY 18 U.S.C. § 2252(a)(1)
The defendant is charged in Count of the indictment with [shipping] [transporting] child pornography in violation of Section 2252(a)(1) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, that the defendant knowingly [transported] [shipped] a visual depiction in interstate commerce by any means, including a computer;
Second, that the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
Third, that such visual depiction was of a minor engaged in sexually explicit conduct;
Fourth, that the defendant knew that such visual depiction was of sexually explicit conduct; and
Fifth, the defendant knew that at least one of the persons engaged in sexually explicit conduct in such visual depiction was a minor.
Comment
Acts that fall within the meaning of “sexually explicit conduct” are listed in 18 U.S.C. § 2256(2).
Acts that fall within the meaning of “producing” are listed in 18 U.S.C. § 2256(3).
For a definition of “computer,” see 18 U.S.C. §§ 1030 and 2256(6).
For a definition of “visual depiction,” see 18 U.S.C. § 2256(5).
Although the term “knowingly” in the text of 18 U.S.C. § 2252(a)(1) and (2) appears only to modify the act of transportation or shipment, the United States Supreme Court has held that the knowledge requirement also applies to the sexually explicit nature of the material as well as the minority status of the persons depicted. See United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994).
Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), sets forth a legislative history of the various federal acts dealing with child pornography.
8.154 SEXUAL, EXPLOITATION OF CHILD
POSSESSION OF CHILD PORNOGRAPHY 18 U.S.C. § 2252(a)(4)(B)
The defendant is charged in Count of the indictment with possession of child pornography in violation of Section 2252(a)(4)(B) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, that the defendant knowingly possessed [books] [magazines] [periodicals] [films] [matters] which the defendant knew contained [a] visual depiction[s] of Ia] minor[s] engaged in sexually explicit conduct;
Second, the defendant knew [each] [the] visual depiction contained in the [[books] [magazines] [periodicals] [films] [matters]] [[was of] [showed]] a minor[s] engaged in sexually explicit conduct;
Third, the defendant knew that production of such [a] visual depiction[s] involved use of a minor in sexually explicit conduct; and
Fourth, that [each] [the] visual depiction had been either [mailed] [shipped] [transported] in interstate or foreign commerce, or produced using material that had been [mailed] [shipped] [transported] in interstate or foreign commerce [by computer [or other means].
“Visual depiction” includes undeveloped film and video tape, and data that has been stored on computer disk or data that has been stored by electronic means and that is capable of conversion into a visual image.
A “minor” is any person under the age of 18 years.
“Sexually explicit conduct” means actual or simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.
“Producing” means producing, directing, manufacturing, issuing, publishing, or advertising.
Comment
Prior to 1998, 18 U.S.C. § 2252(a)(4) required the possession of at least three visual depictions before an offense had occurred. As part of the Protection of Children From Sexual Predators Act of 1998, Congress amended section 2252(a) to prohibit possession of one visual depiction. At the same time, Congress added 18 U.S.C. § 2252(c), which provides an affirmative defense when, under certain circumstances, the defendant possessed “less than three matters containing any visual depiction.” If such a defense has been raised, care should be taken in revising the instruction so that the jury is not confused.
The definitions of “minor,” “sexually explicit conduct,” “producing,” and “visual depiction” are derived from 18 U.S.C. § 2256(1), (2), (3) and (5), respectively. Interstate or foreign commerce is defined by 18 U.S.C. § 10. “Matter” is a physical media capable of containing images such as a computer hard drive or disk. United States v. Lacy, 119 F.3d 742, 748 (9th Cir. 1997). See Lacy, 119 F.3d at 748 (jury instruction for possession of child pornography must include as an element whether defendant knew the “matter” in question contained unlawful visual depictions; such a depiction may be “produced” when a defendant downloads visual depictions from the internet).
Undeveloped film may constitute a “visual depiction,” United States v. Smith, 795 F.2d 841 (9th Cir. 1986), as well as computer graphic interchange format (GIF) files from which pornographic images could be retrieved. See United States v. Hockings, 129 F.3d 1069 (9th Cir. 1997). Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), sets forth a legislative history of the various federal acts dealing with child pornography.
8.155 SEXUAL, EXPLOITATION OF A CHILD
DEFENSE OF REASONABLE BELIEF OF AGE
It is a defense to a charge of sexual exploitation of a child that the defendant did not know, and could not reasonably have learned, that the child was under 18 years of age.
The defendant has the burden of proving by clear and convincing evidence that is, that it is highly probable that the defendant did not know and could not reasonably have learned that [victim] was under 18 years of age.
If you find by clear and convincing evidence that the defendant did not know and could not reasonably have learned that the child was under 18 years of age, you must find the defendant not guilty of the charge of sexual exploitation of a child.
Comment
Although the statute is silent on whether reasonable mistake of age may serve as an affirmative defense, the Ninth Circuit has held that the defense is required by the First Amendment. United States v. United States District Court, 858 F.2d 534, 540-42 (9th Cir. 1988).
*David Beneman is a graduate of Bates College and the University of Maine School of Law. He has been a partner/shareholder at Levenson, Vickerson & Beneman since 1986. In 1994 he spent the month of August with Gerry Spence at the first Trial Lawyers College in Wyoming. Mr. Beneman’s practice focuses on representing the rights of individuals in both state and federal court, primarily in the areas of criminal defense, personal injuries, and employment disputes. He serves as CJA Resource Counsel for the District of Maine and is an is an active member of both the NACDL and is Vice-President of the MACDL and Chairs of the Federal Practice Section. David is a member of the Maine Rule of Evidence Committee, the Maine Federal District Court Local Rules Committee and serves as the criminal defense bar liaison to the federal court. An early advocate for technology in the law office, he has evolved from WordPerfect for DOS on a 286, 386, 486 to his currently dated but still viable Pentium III 450 with 128 megs of RAM running Windows and WordPerfect 8 and 10 as well as Word, CaseMap, TimeMap, and PowerPoint. David is regular author and speaker at CLE not just in Maine but across the county.
FOOTNOTES:
§2252 A was passed in 1998. It essentially subsumes §2252, and is more encompassing. It remains unclear why §2252 was not repealed, perhaps a congressional oversight. For complete background on the passage of the law and for a detailed analysis, reference is made to the excellent and exhaustive handout “Computer Internet Crimes” by G. Patrick Black, Federal Public Defender for the Easter District of Texas.
See Ashcroft v. Free Speech Coalition and related constitutional challenge under defenses.
Fox here adds note 45, “U.S. v. Hilton, 257 F.3d 50 (1st Cir 2001) Hilton, 167 F.3d at 73-74. In candor we must nevertheless recognize that, as this is an affirmative defense which places the burden of proving the models’ majority on defendants who are virtually certain not to be able to track down producers and actors to adduce evidence of age, the defense is likely illusory.”
Remember that sentencing classification still makes a difference under the Sentencing Guidelines, as a sentence of probation is not available for a Class A or a Class B felony. 18 U.S.C. § 3561(a)(1), Guideline § 5 B 1.1.
