Child Pornography Defense: Federal Court

Federal Child Pornography Charges

Federal law criminalizes the production, distribution, reception, and possession of a visual or printed image of child pornography using or affecting any means or facility of interstate or foreign commerce (See 18 U.S.C. § 2251; 18 U.S.C. § 2252; 18 U.S.C. § 2252A). Federal jurisdiction flows from events that happen across state lines or in foreign commerce, and virtually all Internet usage involves transmissions across state lines or in foreign commerce. Therefore, pretty much all charges of Child Pornography could be charged in Federal Court. However, the majority are filed in State Court.

Cases that are more likely to be charged in Federal Court are:

1. Repeat offenders. Those with prior convictions for sexual offenses against children or prior child pornography charges.
2. Producers. If a person produces or creates child pornography by exploiting a child, they have access to then it is almost certain that will be charged in Federal Court. This can include those charge with Enticement of a Minor to Produce child pornography.
3. High Profile Individuals. If the suspect is a celebrity, elected official, or other prominent member of the community the case may be charged in Federal Court.
4. Large Collections. We have seen individuals prosecuted in Federal Court because of the large quantity of image files that they possessed.

Drawings and Cartoons Are Not Prohibited

Importantly, Federal prohibitions on these images does not include visual depictions that are drawings, cartoons, paintings, sculptures, or computer-generated images. Under 18 U.S.C. 2252, depiction must actually be child pornography that was created with real minors.

Enticement Is Also a Child Pornography Related Crime

Convincing a minor to take pictures of themselves to send to you is a crime. 18 U.S.C. Section 2251 makes it illegal to persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct for purposes of producing visual depictions of that conduct. Any individual who attempts or conspires to commit a child pornography offense is also subject to prosecution under federal law. At the Meryhew Law Group we are seeing more and more of these cases involving efforts to persuade minors online to take and send nude or sexual images of themselves. This is a very serious crime subject to very severe sentences.

Consequences of Federal Prosecution

Prosecution in Federal Court exposes defendant’s to significantly more risk of long prison sentences and longer periods of probation, called supervised release in the Federal system. For repeat offenders and those who produce child pornography there may be very long mandatory minimum sentences. For repeat offenders that mandatory minimum sentence is five years in prison. For the individual who produces child pornography that mandatory minimum sentence is fifteen years in prison.

Federal Sentencing: Variances Below the Presumptive Guidelines Range

Federal Judges are given much more discretion than State Judges when it comes to sentencing of Child Pornography Defendants. In State Court the Judges have very little discretion to go above or below the Standard Sentencing Ranges established by the Legislature. But in Federal cases the Court does have greater discretion, which more often than not helps the defendant. In a recent study of Federal sentencing of child pornography offenders in 2019, The majority (59.0%) of non-production child pornography offenders received a variance below the guideline range.

The key to gaining a sentence below the Guidelines Range is the development of a comprehensive and persuasive mitigation packet for the government and the Court to consider. At the Meryhew Law Group we have the skills and the resources to help our clients obtain the psychosexual evaluations, psychological assessments and history, medical and school records, input from community contacts, letters of support from friends and family and community, and whatever it takes to tell our client’s story. With this mitigation material in hand a Prosecutor and a Judge are better able to understand what brought a person to this point, and to see the plan that has been created to address these issues in the future.

Affirmative Defense in Federal Court

In Federal Law there is what the law calls an “affirmative defense” for those who encounter a small amount of child pornography and immediately delete that material and/or notify law enforcement about the images. Unfortunately, we rarely if ever see individual’s complying with the requirements of this affirmative defense:

(c) Affirmative Defense.—It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant—
(1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) took reasonable steps to destroy each such visual depiction; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

State and Federal Prosecution at the Same Time

There are cases involving the sexual abuse of a child as well as the Production of Child Pornography that we see Prosecuted in both State and Federal Court. At the Meryhew Law Groups because we practice regularly in both of these courts, we are well positioned to assist our clients in both matters and work toward what we call a “global resolution” of the cases. We have extensive experience working with both State and Federal authorities to achieve the best possible outcome for our client and their family.

Federal Child Pornography Defense

At the Meryhew Law Group we have been fighting child pornography charges in Federal Court for over a decade with a long track record of proven results for our clients. We know when to bring in experts on computer forensic analysis, and we know when to bring in psychological and sexual behavior experts. Each case is different, and each case requires a unique strategy and tools to solve. If you or someone you care about is facing these very serious charges then contact us for a free initial consultation to talk about how we would approach your case.