Federal child pornography laws are extremely tough, and federal investigators enforce those laws vigorously. The consequences of a conviction are far-reaching and long-lasting. It goes without saying that it is critically important to be represented by an attorney who understands the relevant statutes and cases, has a grasp of the complex forensic computer evidence, and is experienced in handling these cases in federal court.
Federal Investigations of Child Pornography Offenses
By the time you or a loved one realize that you are being investigated for a child pornography offense, federal agents have likely already been investigating for several months, unbeknownst to you. Several federal agencies are tasked with enforcement of child pornography laws, including the Federal Bureau of Investigation and Homeland Security Investigations, which is part of the Department of Homeland Security.
These agencies use a variety of techniques to track and investigate possible violations of child pornography laws. For example, undercover agents scour peer-to-peer networks for shared files with names that suggest they may contain child pornography. Once such files are located and downloaded by the undercover investigators, agents then use publicly available tools to track down the Internet Service Provider (ISP), such as Verizon or Comcast, that owns the Internet Protocol (IP) address used to upload and share the suspected contraband. Administrative subpoenas are then issued to the ISPs to determine the specific user or users to which the IP address is registered.
Once investigators determine the location from which the suspected illegal activity is occurring, they will typically pursue further investigation of that address and its occupants, including physical surveillance and review of publicly available records. They may also obtain records from the Department of Motor Vehicles (DMV) to further corroborate the information they have.
When investigators think they have enough evidence to support probable cause to believe that child pornography exists at the target location, they typically obtain a search warrant signed by a federal magistrate judge to authorize them to search the target premises. The target of the investigation usually has no idea that he is a target or suspect until the day the search warrant is executed. Investigators will then seize all electronic devices from the premises, as well as any other possible evidence related to their investigation.
Once the search warrant is executed, federal investigators transport the electronic devices to secure computer labs where forensic computer experts create mirror images of the hard drives and perform various searches of the devices using advanced forensic tools. The results of the forensic examination, as well as whatever information was gleaned throughout the investigation, will ultimately determine what charges federal prosecutors ultimately pursue.
Federal Child Pornography Charges
- Possession of child pornography: Federal law prohibits the knowing possession of depictions of “child pornography,” a technical term that is defined by statute. In general terms, this includes any depictions of a minor (a child under the age of 18) engaging in sexually explicit conduct. This offense is a felony punishable by up to 10 years in prison. But if any of the depictions contain images of children under the age of 12 or prepubescent children, the maximum penalty is up to 20 years in prison. In addition, if a person convicted of possession of child pornography has a previous conviction for certain offenses related to the sexual exploitation of children, the statute provides a mandatory minimum sentence of 10 years and a maximum sentence of 20 years in prison. A mandatory minimum sentence means that even the sentencing judge does not have the discretion to impose a shorter sentence, regardless of the circumstances of the case.
- Receipt of Child Pornography: In addition, and separate from the offense of possession of child pornography, is the offense of “receiving” child pornography. That means if federal investigators can prove that an individual knowingly used any means of interstate commerce, such as the mail or a computer, to receive the contraband files, the individual will likely be charged with “receipt.” The important distinction between “possession” and “receipt” is that a receipt charge carries with it a statutory mandatory minimum sentence of 5 years and up to 20 years in prison. If a person convicted of this offense has a prior conviction for certain offenses related to the sexual exploitation of children, the mandatory minimum sentence is a whopping 15 years in prison, and the maximum sentence is up to 40 years.
- Distribution of Child Pornography: A third possible offense is the distribution of child pornography to others. This can include knowingly sharing files with others over a peer-to-peer network, by email, or using any other means of interstate commerce (i.e., the mail, the internet, etc.). The penalties for distribution are the same as those for receipt of child pornography, although the sentencing guidelines are typically harsher and call for stiffer sentences.
- Production of Child Pornography: Production of child pornography, which by definition involves the actual physical abuse of children, is obviously far more serious than the possession, receipt, or even distribution of such images. As such, it is punishable by a mandatory minimum sentence of 15 years and a maximum sentence of 30 years. Those penalties are enhanced if the person has a prior conviction for certain offenses related to children, in which case the mandatory minimum sentence is 25 years and the maximum sentence is 50 years in prison. The penalties are further enhanced if the person has 2 or more prior such convictions, resulting in a minimum sentence of 35 years in prison and up to a sentence of life in prison.
Sentencing Issues in Federal Child Pornography Cases
Needless to say, the possible penalties in child pornography cases can be staggering, particularly where a mandatory minimum sentence is involved. Moreover, in addition to the prison sentence, the court will usually impose a financial penalty, including fines and restitution to the victims. Federal law also requires anyone convicted of a child pornography offense to register as a sex offender and continue to renew that registration.
As with all federal offenses, if a person has been convicted or pled guilty to a child pornography offense, the first step in determining the likely sentence is determining the applicable sentencing guidelines. Those guidelines are not binding on the court, but they are usually the starting point for federal judges in fashioning an appropriate sentence.
At the sentencing stage, it is critically important for your attorney to both understand and properly present your full history to the court and to the probation officer who prepares the Presentence Report. That report is very important to the court in determining your sentence, and it should provide the court with all of your background as it relates to the offense, such as any mental health issues, addiction problems, childhood trauma, or other circumstances that may help mitigate the circumstances of your case.
Once the Presentence Report is finalized, your attorney will file a memorandum on sentencing, presenting your position on sentencing to the court. Again, it is important for that memorandum to provide the court with a well-rounded background of who you are as a person beyond the specific offense that brought you before the court. For example, any history of mental health treatment that you have undergone, as well as any reports from treatment providers, will often be given considerable weight by the court in fashioning your sentence. Ultimately, a hearing will be held on sentencing, and the judge will issue a sentencing order.
You should have a detailed and frank conversation with your attorney about the realistic sentencing options and possibilities, as well as what steps you can take early on in your case—well in advance of any conviction—to place yourself in the best position possible in the event of an eventual sentencing.
Possible Defenses to Federal Child Pornography Charges
It is critical to consider a variety of possible defenses to charges related to child pornography. These include, among many others, the following issues to consider:
- Do you have an affirmative defense under the child pornography statute? Federal law specifically provides an affirmative defense to the charge of possession of child pornography where the accused possessed less than three matters containing a depiction of child pornography and promptly and in good faith, and without sharing the images with anyone other than law enforcement, took reasonable steps to destroy each such depiction or reported the matter to a law enforcement agency and allowed them to do so.
- Was the evidence against you obtained lawfully? If the evidence found by federal investigators was obtained by unconstitutional methods, such as a warrantless search without any emergency or based on a warrant that was issued on the basis of knowing falsehoods made by investigators, the court may “suppress” or exclude that evidence from trial. Likewise, if investigators obtained a confession or statements from you by unlawful means, those statements may be suppressed.
- Can the government prove that you possessed the contraband? Suppose a computer is used by multiple users and is not password protected. In that case, investigators must determine which user is responsible for the contraband. They will evaluate what is referred to as “attribution evidence,” which simply means evidence of other computer use at or around the time of the illegal activity by which investigators can circumstantially tie the illegal activity to a specific user. Your attorney, and possibly a forensic computer expert retained on your behalf, should carefully examine the computer evidence to determine whether that link can actually be made beyond a reasonable doubt.
- Can the government prove that you acted knowingly? The intent element of the offense is important and must be proven beyond a reasonable doubt. Depending on where and under what circumstances the files were discovered, you may have a defense as to the intent element.
What to Do if You Are a Target of a Federal Child Pornography Investigation
If you discover that you are the target of a federal child pornography investigation, it is critically important that you immediately retain an experienced and trusted attorney who can advise you and protect your rights. Just as importantly, you should not make any statements to law enforcement or others regarding the investigation before consulting with an attorney.
Facing federal child pornography investigations or charges is stressful and frightening, and the process can be long and grueling. Not only is it important to have zealous and capable representation throughout the process, but it is also critical to seek the right support and treatment where appropriate with qualified mental health professionals, after consulting with your attorney. If you have been charged with possessing, receiving, distributing, or producing child pornography, contact an experienced attorney at Greenspun Shapiro today.