Sex Crimes

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 5^th 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).’”

 

 

 

Have you or someone you know been charged with Child Pornography in Pennsylvania? The charge of Child Pornography in Pennsylvania can have very serious consequences that can include up to seven years in prison and thousands in fines.

It is possible to mistakenly violate the child pornography laws, because of the internet. For example, if you are downloading/viewing images or a movie and one of the individuals in those images or movie is under age you have violated the child pornography laws. If you are even charged with this offense it will affect everything that you do, as the stigma will permeate every aspect of your life. Let alone what a conviction will do, in addition to the jail and fines, you will be required to register as a sex offender for possibly the rest of your life.

Pennsylvania law makes it a crime to intentionally or knowingly view or possess books, magazines, photos, videos, computer depictions or other materials that depict children under 18 engaging in sexual acts or simulating those acts.

In Pennsylvania, it is illegal to photograph, sell or distribute images of children under 18 engaging in or simulating sex acts to appear in books, magazines, films, computers or other materials.

In Pennsylvania, these types of cases are typically handled by the State Attorney General’s office, instead of the local District Attorney Office.

If you are charged with a child pornography offense, do not talk to the police or prosecutors without an attorney. What you say will be taken out of context and used against you. If the police try to question you, exercise your sixth Amendment and tell them you want a lawyer. Do not consent to any searches of your house, computer, or phones without a proper warrant.

Once you have retained a competent Criminal Defense Attorney they will review all of the allegations being made by the police and prosecutors, including any evidence that they claim to have. In many cases, it will benefit you if a forensic computer expert is obtained to do a detailed analysis of your computer.

It is extremely important to contact an experienced law firm right away if you or someone you know is facing criminal charges in Pennsylvania. If you, your son, daughter, or loved one in Pennsylvania has been arrested for a crime in state or federal court in Pennsylvania you need legal representation. Here at Manchester and Associates, e represent people across the Commonwealth of Pennsylvania. For a free consultation, we can be contacted at 1-800-243-4878.

Are you a registered Megan’s Law Offender in Pennsylvania? If you have been convicted of or are being charged with a sex crime in Pennsylvania this is important information about your First Amendment rights.

While reading the American Bar Association Journal today I came across an interesting article on the rights on the first Amendment in our US Constitution and how powerful this right is. A recently decided US Supreme Court decision illustrated this. PACKINGHAM v. NORTH CAROLINA No. 15–1194. Argued February 27, 2017—Decided June 19, 2017.

There is a law in North Carolina that makes it a felony to access the internet/websites that have any social media connection for convicted individuals who also had to become registered sex offenders. This law included individuals who had completed all other aspects of their sentencing other than the registration requirement.

The Court stated: In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition, 535 U. S., at 255. That is what North Carolina has done here. Its law must be held invalid.

How will this decision affect cases in Pennsylvania? Can the Courts still impose restrictions when an individual is still on probation? These questions still remain and will have to be figured out through litigation here in Pennsylvania.

If you, your son, daughter, loved one in Pennsylvania has been arrested for a crime in state or federal court in Pennsylvania you need legal representation. Here at Manchester and Associates, we represent people across the Commonwealth of Pennsylvania. For a free consultation we can be contacted at 1-800-243-4878.

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.