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Articles Posted in Child Pornography
December 27, 2018Teen Sexting & Child Pornography Charges
By Brian Manchester
Sexting is the sending of pornographic photos or videos through electronic forms of communication, such as text message or Snapchat. Some states have passed laws specifically to target the issue of teens sexting other teens. However, Pennsylvania has not done so. Therefore existing child pornography laws are applied to teen sexting cases.
This means that harsh punishments meant for adults who possess or exchange child pornography, are applied to teens who send or receive nude photographs to and from other teens. 1 in 5 teens admits to sending or receiving nude photographs, meaning that they could face these harsh penalties.
What Child Pornography Laws Cover
- Possessing a sexually explicit photo or video of a person under the age of 18.
- Distributing a sexually explicit photo or video of a person under the age of 18.
- Enticing or coercing a person under the age of 18 to take suggestive photos or videos.
- Production of sexually explicit photos or videos of someone under 18.
Teen Sexting Qualifies as Child Pornography
Under these definitions, teen sexting would qualify as child pornography in the state of Pennsylvania, no matter the age of the recipient as long as the photo shows a person under the age of 18.
This is because a minor is considered to be legally unable to give consent for these photographs. If the minor willingly sent the photographs to the recipient, it does not affect a child pornography case. To be charged with child pornography related to sexting, it must be proven that the person was acting with lascivious intent.
Lascivious intent means that the defendant was receiving sexual gratification from the photographs or video, or sending the material to others for their sexual gratification.
It is important to note that the Federal Juvenile Delinquency Act states that minors that are involved in crimes are to be prosecuted in state, rather than federal, courts, causing minor to minor sexting to be a state issue. If a minor sends a sexually explicit photo of his or herself to another minor, under the Federal Juvenile Delinquency Act, they will not face federal charges.
Punishments for Teen Sexting
Pennsylvania no longer has mandatory minimum sentences for child pornography due to a recent decision of the Pennsylvania Supreme Court. However, due to the stigma of child pornography and out of concern for the victims depicted in the material, state judges are particularly reluctant to show leniency or mercy towards a defendant who is convicted of these charges.
This means that a state court conviction may result in lengthy sentences of incarceration and court supervision. Even though mandatory minimums do not currently apply, the legislature often seems poised to reinstate mandatory minimums for a wide variety of offenses.
Further, the suggested sentences called for by the Pennsylvania sentencing guidelines are usually state prison sentences because there are enhancements to the guidelines for child abuse cases. The enhancements result in higher recommended sentences under the Pennsylvania Sentencing Guidelines based on the number of images and the nature of the material.
Posted in: Child Pornography ,
December 27, 2018Distribution of Child Pornography | Case Study
By Brian Manchester
Distribution of Child Pornography
Child Pornography charges have tremendous consequences for those convicted in the State of Pennsylvania. In “Child Pornography Charges in Pennsylvania”, we discussed how these charges can effectively result in a ‘life sentence’.
Now we will examine US v Scott, a child pornography case that shows how possession of child pornography can lead to distribution charges, and how those distribution charges can be fought against.
US v Scott
Jason Scott pleaded guilty to one count of possessing child pornography and was sentenced to 108 months in prison and a lifetime term of supervised release. He appealed the district court’s calculation of his Sentencing Guidelines range as well as the length and conditions of his supervised release.
A grand jury indicted Scott on one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and three counts of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He originally pleaded guilty to one count of receiving child pornography and was sentenced to 235 months in prison and a ten-year term of supervised release. However, this conviction was vacated after Scott filed a motion alleging that he pleaded guilty because his lawyer assured him that the district judge had told a mutual friend that Scott would get “hammered” if he went to trial, but that the judge would “take it easy on him” by sentencing him to only five years if Scott pleaded guilty.
The second time around Scott pleaded guilty again to a single count of possessing child pornography. This plea’s stipulated factual basis agents conducting an investigation into the use of a computer program called LimeWire determined that Scott’s computer “was actively downloading and possessing child pornography.” Law enforcement was able to download three illicit videos from the “shared” Limewire file folder on Scott’s computer. Through a forensic examination of Scott’s computer they confirmed that those videos were downloaded from the internet. The placement of files in the shared folder is part of Limewire’s default (but optional) settings.
Scott’s Presentencing Report (PSR) stated that he had used LimeWire to traffic in child pornography. The PSR recommended a five-level enhancement under U.S. Sentencing Guideline § 2G2.2(b)(3)(B) for “distribution [of child pornography] for the receipt, or expectation of a thing of value, but not for pecuniary gain.” Scott objected to this enhancement, arguing that a two-level enhancement under § 2G2.2(b)(3)(F) for “distribution other than distribution described in subdivisions (A) through (E)” should be applied instead. The PSR disagreed with this position, telling the court that Scott “had the file sharing function of [LimeWire] turned on … allowing him to not only receive … but to ‘distribute’ child pornography.” The PSR added that § 2G2.2(b)(3)(B) applies when a defendant trades in child pornography in exchange for child pornography.
Scott disagreed and argued to the court that he had been convicted of possession, not distribution, of child pornography. He stated that Government had not presented any “evidence that he knew he was making child pornography available to others or that he was a sophisticated computer user who might be presumed cognizant of the sharing.”
- 2G2.2(b)(3)(B); Receipt, or Expectation of a Thing of Value
The issue in Scott’s case was whether he distributed child pornography “for the receipt, or expectation of receipt, of a thing of value” so as to warrant a five-level enhancement. The Fifth Circuit stated that a sentencing court must make a “requisite finding” that a defendant used LimeWire to “download and distribute child pornography” within the meaning of § 2G2.2(b)(3)(B). The sentencing court had concluded that Scott “by using LimeWire and other peer-to-peer file sharing programs, agreed to share the child pornography he gathered.” The 5th Circuit Court of Appeals remanded Scott’s case back to the sentencing court with instructions that the court must determine “whether the Government has met its burden of proving by a preponderance of the evidence that Scott knowingly used LimeWire in ‘the kind of exchange contemplated by § 2G2.2(b)(3)(B).’”
In short, the sentencing court did not make an “express finding” that Scott “knowingly used LimeWire to exchange child pornography” sufficient to create an “agreement” to distribute child pornography stored on his computer in exchange for “additional child pornography.”
Because of this the Fifth Circuit remanded Scott’s case back to the sentencing court with instructions that the court determine “whether the Government has met its burden of proving by a preponderance of the evidence that Scott knowingly used LimeWire in ‘the kind of exchange contemplated by § 2G2.2(b)(3)(B).’”
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December 4, 2018Child Pornography Charges in Pennsylvania
By Brian Manchester
Photographing, filming and possessing child pornography are prohibited by Pennsylvania state law, as well as federal law. Pennsylvania prohibits the photographing, videotaping, depicting on a computer or filming of children under the age of 18 engaging in a sexual act or simulating such an act. Conviction for this offense constitutes a second degree felony and may carry a sentence of imprisonment for up to ten years.
The dissemination of photographs, videotapes, computer depictions and films depicting children under the age of 18 engaging in a sexual act or the simulation of such an act is also prohibited under Pennsylvania statute. Those convicted for this offense will be punished for a felony of the third degree and will face up to five years’ imprisonment.
Possession of Child Pornography in Pennsylvania
Possession of child pornography is also illegal in Pennsylvania. Intentionally viewing or knowingly possessing child pornography violates state law and anyone found to do so will be guilty of a third-degree felony. Pennsylvania has increased the punishment for the possession and dissemination of child pornography. The offense gravity scores have increased and there are now enhancement added to the base offense gravity score after so many images are possessed. What is worse is each single picture or video can be sentenced separately. Unlike the federal system where sentence is determined in part by the quantity of pictures possessed, Pennsylvania can charge for each individual picture. Someone possessing dozens of pictures in theory could receive a de facto life sentence.
Collateral Consequences of a Conviction
An accusation alone related to child pornography can severely damage one’s life due to the stigma surrounding these crimes. Other than the possibility of significant state or federal sentences, Pennsylvania also has mandatory sex offender registration for child pornography charges under Meghan’s Law. Pennsylvania’s Megan’s Law, 42 Pa.C.S § 9799.32(1) and § 9799.67(1), requires the State Police to create and maintain a registry of persons who reside, or is transient, work/carry on a vocation, or attend school in the state and who have either been convicted of, entered a plea of guilty to, or have been adjudicated delinquent of Certain Sexual Offenses in Pennsylvania or another jurisdiction.
Pursuant 42 to Pa.C.S. § 9799.28 and § 9799.63, the State Police established a website to provide information to the public on registered sexual offenders who reside, or are transient, attend school, or are employed/carry on a vocation, within the state of Pennsylvania. This means that a child pornography conviction will follow you for the rest of your life, as the information about your case, as well as where you live at any given time, is easily accessible to the public.
What Can You Do If Charged with Child Pornography Charges in Pennsylvania?
If you or a loved one are facing Child Pornography charges in Pennsylvania, it is important to contact an criminal defense lawyer for legal counsel as soon as possible. For a Free Strategy Session to begin building a defense against these charges, call Manchester & Associates at (888) 994-7616. We want to help you.
June 29, 2017Federal Child Pornography Charges In Pennsylvania
By Brian Manchester
Being charged with child pornography by the federal government in Pennsylvania is a very serious crime. If you, a friend, relative, brother, sister, father, mother are charges with child pornography in Pennsylvania you should immediately call us. Even if all that happens is a search warrant was issued for your home, cell phones, computers, electronic devices and you were not put under arrest the first thing you must do is not say anything and the second is to call an experienced Pennsylvania child pornography defense lawyer.
Under federal law, child pornography is any “visual depiction” of a minor engaging in “sexually explicit conduct.” A visual depiction is basically a picture, video or digital image. A minor is anyone under 18 years old. “Sexually explicit conduct” includes a variety of sexual activity including intercourse, masturbation and “lascivious exhibition of the genitals or pubic area” of any person. Nudity can be considered “sexually explicit conduct” if it is sexually suggestive.
It is illegal under federal law (18 U.S.C. §2252) to produce, distribute, receive or possess any child pornography. It is also illegal under federal law to knowingly search for and view child pornography even if the images are subsequently destroyed or deleted.
A conviction for a federal child pornography offense can carry a substantial amount of prison time. A person who is convicted of knowingly possessing child pornography can be sentenced up to 10 years in prison or up to 20 years in prison if the minor depicted in the image is under the age of twelve.
A person who is convicted of distributing or receiving child pornography faces a 5 to 20 year prison sentence. Of course, the sentences can be dramatically increased for a person with a prior conviction.
There are also fines and restitution payments that are often required to any identifiable victim of the offense. Not to mention, being convicted of a child pornography offense in federal court will require registration as a sex offender.
Sexual Exploitation of Children
Sexual exploitation of children is a separate crime under federal law that covers the production of child pornography. A person who attempts to induce, persuade or entice a minor to engage in a sexual act for the purpose of making a video, picture or other image is guilty of sexual exploitation under federal law (18 U.S.C. §2251). As with other federal child pornography laws, a minor means anyone under the age of 18.
A person can be prosecuted for sexual exploitation even if all of the conduct occurred outside of the United States. To prosecute someone who is accused of producing child pornography in a foreign country, the government must prove that the person intended to send or make available the child pornography to people in the United States.
The penalties for sexual exploitation under federal law are incredibly severe. The mandatory minimum sentence is 15 years and the maximum is 30 years. The exact sentence for a child pornography or sexual exploitation conviction will depend on a number of factors and the calculation of the advisory federal sentencing guidelines.
In child pornography cases in Pennsylvania and in all federal courts, the sentence usually depends on the number of images or videos that the person possessed or distributed, the age of the minors in the images and the type of sexual conduct shown. There are also enhancements for people who have engaged in a pattern of similar conduct even if the person has never been previously charged or convicted of a sex crime.
Defenses to Child Pornography and Sexual Exploitation Charges
Defending someone charged with a child pornography or sexual exploitation offense in Pennsylvania federal courts can be extraordinarily difficult.
The most obvious defense to these charges is that the person depicted in the film or image is not a minor. We have consulted with pediatricians and other medical experts to review images to show that the person being depicted may very well be 18 years old.
It is a strange fact that federal law criminalizes the possession of a nude picture of someone who is 17 years old, especially in states where 17-year-old people are legally able to consent to sexual intercourse. While in many states it is perfectly legal to have a sexual relationship with someone who is 17 years old, possessing a nude picture of that 17 year old is a violation of federal law and will result in prison time.
As experienced criminal defense lawyers who regularly handle child pornography charges in Pennsylvania we look at the evidence in the case to determine if the images actually show “sexually explicit conduct” as defined under federal law. Many times, the government has collected images showing nudity but not the type of sexual activity prohibited by the law. Images commonly referred to “erotica” are not necessarily images of child pornography.
I many cases of child pornography charged in Pennsylvania and in all federal courts it is important to obtain the assistance of some of the best computer forensic experts in the country. A good computer forensic expert in a child pornography case can help us determine if the government has properly conducted a search of the computer and other electronic devices to locate the evidence.
Our experts will often show that these images may not have been knowingly possessed by the person being charged and, if they had been inadvertently obtained, were quickly deleted or destroyed. Our experts can also help us show that any child pornography images may have been mistakenly downloaded when the computer has a significant amount of adult pornography that is otherwise legal. We can also have our experts focus on specific internet search terms to show that our client was not intentionally searching for child pornography.
In some cases, we have been able to show that the tips or leads the government receives cannot conclusively show that it was our client’s computer that was offering child pornography for distribution. This is also true in many of the undercover operations the government conducts when agents are trolling the internet and various networks trying to find child pornography to download.
Most federal child pornography cases involve the use of peer-to-peer networks and software, including Gnutella, Aries, Bit Torrent and similar networks. We are also now seeing cases involving the TOR network, which the government has recently been able to access and investigate. In a few recent cases, our experts have been able to show that our client’s computer may have been maliciously accessed and used by these networks to allow the distribution of child pornography in Pennsylvania and throughout the country without our client’s knowledge.
Should you find yourself in a situation where you, a family member, or a friend are being charged or investigated for child pornography you need to contact criminal defense attorneys that are experienced in defending federal child pornography charges. Here at Manchester and Associates we represent people across the Commonwealth of Pennsylvania charges with federal child pornography charges. At Manchester and Associates, we only practice in criminal defense, thus we understand when people find themselves accused or charged with child pornography in Pennsylvania the challenges that our clients are facing. With a combined experience of over 50 years, there is almost no situation we have not encountered. For a free consultation we can be contacted at (888) 994-7616.
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