New York Lawyer's Legal Updates

Defending The Child Pornography Case

By Anthony J. Colleluori
Law Offices of Anthony J. Colleluori & Associates PLLC
Melville NY 11747

Child Pornography is defined by 18 USC 2256 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 —

  • (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
  • (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
  • (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct."

The Internet has moved the child pornography business into homes and offices throughout the nation. Prosecutions are up in this area and the US Justice Department, with the support and urging of a number of otherwise disparate political groups, is spearheading this effort. Hence the Federal Prosecution of Child Pornography is a new cottage industry in criminal law.

The Federal Sentencing Guidelines in most cases can cause the possessor of such material to actually serve more time in prison than the person who actually commits acts of violent against, or has sex with children. Sentences of 20 years or more are regularly administered throughout the nation and a five year sentence is the mandatory minimum in Federal Court. Further, certain opportunities to reduce prison terms are unavailable to the "Child Porn" possessing defendant due to the very nature of both the crime and the Internet. Unlike most crimes, here the possessor never meets, nor can he actually identify his potential co-defendants. Recently a local prosecutor wrote to the court that with the exception of one case in seven years of leading Child Porn prosecutions in his district, he had never seen a defendant in one of these cases actually provide a lead that led to the prosecution of another individual. In other words a 5k.1 letter (a letter from a prosecutor advising the court of substantial cooperation of the defendant warranting a reduction of sentence below guideline and even mandatory minimum sentences) is usually not seen in these cases.

Finally the crime is sure to land the defendant on the "Sex Registry" listing which could, under certain circumstances, serve to cause the defendant to be placed into a locked down sex offender therapy unit after his sentence is completed. There is no required release from such a unit.

As a result of these horrors it is of great import that counsel, when retained in these cases takes certain steps as quickly as possible. The number one effort ought to be to find out who has arrested the client and where the client is being held. Counsel should invoke the defendant's right to counsel, his right to remain silent and stop any questioning that may be taking (or about to take) place. Counsel should also try to get his hands on any evidence he can and have it evaluated as soon as possible. Destruction of such evidence is illegal. Hence counsel must be careful to make sure nothing in his procedures leads to spoliation of the evidence. Finding out who had access to the computer is also very important. If a computer is a "family" computer, then no one should give any permission to anyone to look at the computer. There ought to be no consent search. Obviously if the computer belongs to the client alone, he should not agree to the taking or reviewing of the contents of the computer. Let the prosecution try to get a court order to view the images.

As has been pointed out by Nathaniel Burney in his blog Criminal Lawyer (http://burneylawfirm.com/blog/2009/05/07/memo-to-child-porn-defendants-the-"it-was-only-research"-defense-never-works/) the defense that one is "doing research" is not a defense although defendant's use this defense over and over again without success. The US Court of Appeals for the Fourth Circuit in U.S. v. Matthews, 200 F.3d 338 (4th Cir. 2000) held that such a defense was not available to a reporter who in fact actually did do a story on child pornography from the documents and images he found.

Faced with the Malum In Se nature of the offense and the terrible outlook for getting a fair and unbiased jury based on the offense's nature, what can and should competent defense counsel do?

There are a number of defense issues which must be raised, and which attack the quality of the evidence. For example the prosecution needs to prove there are over Six Hundred (600) images on the computer if it is to sustain the largest sentences. Counting them is important. Even further Defense counsel needs to hire experts who can review the evidence (which is often done in the prosecution's office or a lab as the law denies the defense the right to have the images even for the purpose of preparing a defense) to determine if the photograph is in fact a photo of real people, that the photo's are real and came from the computer they are alleged to have come from or that the people in the images are in fact children.

Defense counsel and clients must remember that a computer drive is rarely ever "clean." Even if a piece of data is "erased" it can be found hiding in some nook or cranny of the computer's memory. It is possible that a computer which was the victim of a "virus" could become infected with child pornography without the owner ever knowing it was there. File sharing programs such as Lime-Wire increase the chance that an outsider may control the computer even if the owner is using it simultaneously while being controlled by another. Innocently clicking onto a website could cause downloading to begin even after the user has disconnected from the site. While such activity is thought to rarely occur, it does occur more often than one would imagine. In testimony before The United States Senate DOJ Deputy Assistant Attorney General John Malcolm stated:
"One favorite trick of online pornographers is to send pornographic Spam email. Another is to utilize misleading domain names or deceptive metatags (which is a piece of text hidden in the Hypertext Markup Language (HTML) used to define a web page) which can mislead search engines into returning a pornographic web page in response to an innocuous query. As a result of these deceptive metatags, searches using terms such as Atoys,@ Awater sports,@ AOlsen Twins,@ ABritney Spears,@ Abeanie babies,@ Abambi,@ and Adoggy@ can lead to pornographic websites."

In a Massachusetts case (Commonwealth v. Filoa) a Government employee who was given a state issue computer was found to have downloaded over 4 times the amount of downloads then common for one in his area of employ. When the computer's hard drive was accessed it yielded a lot of Child Pornography. Defense experts came in and determined that the information downloaded was downloaded at a supernatural rate (some forty sites per minute) far more than a human could have accomplished. Charges were later dropped.

An opportunity to argue for Jury Nullification can be had, if your expert finds that the alleged porn, while downloaded, was not viewed or opened and/or was immediately deleted. It is not a defense to the charges but it is the kind of thing a jury may hang is hat on if they are looking for reasons to acquit. Further the defendant's lack of prior record and other psychological findings may be used to suggest that either the defendant was not the one who downloaded the material, or that he didn't do so knowingly.

Sentencing advocacy is also very important in these cases. Sentences have risen sharply over the last decade as is pointed out in Clint Broden's article (which can be accessed on the Web at http://www.brodenmickelsen.com/blog/defending-child-pornography-offenses-in-federal-court/) Defending Child Pornography Offenses in Federal Court, he provides a chart of average sentencing over the last 20 years in these types of cases where there were videos and photos (Videos are counted as over 600 images):

Year fromYear toUSSG Guideline levelSentencing range
198711/19901312-18 months
11/9011/961821-27 months
11/9611/002241-51 months
11/004/032770-87 months
4/0311/042987-108 months
11/048/1034151-188 months

Sentencing advocacy in these cases does have an effect on courts, especially when judges begin to understand that actually having sex with a minor carries a lesser sentence than possessing or distributing the images. In a recent case Judge Weinstein of the EDNY stated that these sentences were ruining the lives of people who otherwise would never come into contact with the criminal justice system (US v. Polizzi, 549 F. Supp. 2d 308 —[EDNY 2008]) The Second Circuit in US v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010)recently held similarly that:
"District judges are encouraged to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 — ones that can range from non-custodial sentences to the statutory maximum — bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results. While we recognize that enforcing federal prohibitions on child pornography is of the utmost importance, it would be manifestly unjust to let Dorvee's sentence stand. We conclude that Dorvee's sentence was substantively unreasonable and, accordingly, must be revisited by the district court on remand."

Using a sentencing mitigation expert is a good way to reduce the damage the guidelines and mandatory minimums bring. As most of the clients charged in Child porn cases tend to not have any prior criminal record and often are parents and community leaders or business people, the court needs to understand these individuals better. An expert in mitigation can put together a "day in the life" video or a booklet highlighting the life of the client and focusing on all the good things the defendant has done in his life. Moreover, in the simple possession or downloading case it seems that the Dorvee decision and the decision in US v. Tutty, No. 09-2705 (2d Cir. July 16, 2010) requires that counsel call into question the underlying non-empirical approach to the guidelines as they developed, as well as the fact that some of the enhancements used to increase the guideline range could be considered as "double dipping." For example the use of a computer is already contemplated by the original base guideline level and so to use the technology enhancement in USSG 2.2G in cases like child Pornography possession is double dipping. The lesson here however is that in defending these types of cases, counsel must take a proactive approach, from questioning the guidelines to deconstructing them.

In conclusion Child Pornography charges are among the most serious a defendant can face in the federal system. Counsel cannot throw up his hands at the charges and hold the defendant's hand as he goes to the gallows. Instead the defense attorney needs to actively litigate against the charge and question the guidelines as well as the "usual thinking" in order to bring justice for his client.