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Two Tennessee Men Sentenced to Prison for Possession of Child Pornography

August 26, 2013, by The McKellar Law Firm, PLLC

Persons charged with violation of federal child pornography laws can face severe sentences, as two Tennessee men are now fully aware. Charles Wesley Bush, of Knoxville, Tenn., and Patrick Shane O'Ferrall, of Piney Flats, Tenn., were recently sentenced to prison time for possession of child pornography and other related charges.

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The Honorable Thomas A. Varlan, Chief U.S. District Court Judge, sentenced Bush on Aug. 20, 2013 to serve 151 months in federal prison for both the possession and distribution of child pornography. In October 2012, Bush was arrested pursuant to a four-count indictment charging him with distribution and possession of child pornography, and he ultimately pleaded guilty in March 2013. According to a press release from the U.S. Attorney's Office, Bush caught the eye of federal authorities through his use of the internet to distribute child pornography. A search of Bush's computer showed that he possessed 232 images and 299 video files of child pornography.

In another Eastern District of Tennessee case, Judge Leon Jordan sentenced Patrick Shane O'Ferrall of Piney Flats, Tenn., to a statutory maximum sentence of 120 months in prison. O'Ferrall was also ordered to pay restitution to a victim, whose image was among the child pornography depictions. According to a U.S. Attorney's Office press release, O'Ferrall's investigation began when, following his arrest for domestic assault, his spouse discovered pornographic images of young children on CDs among his belongings. Officers then confiscated computers and other forms of electronic media from O'Ferrall's residence, and the seized items contained over 3,500 images containing child pornography and DVDs containing videos of young children engaged in sexual acts.

As these cases show, child pornography can carry severe penalties. If you are suspected of being involved with a federal sex crime, act immediately to consult with an experienced federal criminal defense attorney.

Child Protection Act Doubles Statutory Maximum Sentences for Child Pornography Offenses

February 6, 2013, by The McKellar Law Firm, PLLC

On December 7, 2012, President Barack Obama signed the Child Protection Act, which doubles the potential sentences for those convicted of certain sex and child pornography crimes. The Child Protection Act (CPA) also provides more resources for investigating online crime and a more efficient way to issue subpoenas. As an additional weapon in the fight against online child crime, the CPA creates a civil action and new offenses for harassing or intimidating a child victim or witness.

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This new law amends the federal criminal code to impose a fine and/or prison term from 10 years up to 20 years for transporting, receiving, distributing, selling, or possessing pornographic images of a child under the age of 12, provided in 18 U.S.C. § 2252(b)(2). In 18 U.S.C. 1514(b)(2), the new law allows a U.S. district court to issue a protective order prohibiting harassment or intimidation of a minor victim or witness as long as the court finds evidence that the conduct could adversely affect the willingness of the minor to participate in a federal criminal case. If an offender is to violate this protective order, then he or she can be imprisoned for up to 5 years and/or be fined. The U.S. Marshals Service can now issue an administrative subpoena for the investigation of unregistered sex offenders by the U.S. Marshals Service.

Finally, the Child Protection Act of 2012 further amends the PROTECT Our Children Act of 2008 in the following ways:
(1) Doubles the amount from $2,000,000 to $4,000,000 annually that the Attorney General can award a non-law enforcement agency to establish and conduct training courses for the National Internet Crimes Against Children Task Force Program.
(2) Requires that the Attorney general designate a senior official at the Department of Justice with experience in child exploitation cases as the National Coordinator for Child exploitation Prevention and Interdiction, and he or she will be responsible for coordinating the development of the new system.
(3) Requires the Attorney General to report within 90 days after the enactment of this Act on the status of the establishment of the system.

Child Pornography Sentences Continue to Stir Up Controversy

Some of the most challenging cases for criminal defense attorneys to take on are cases involving possession of child pornography. As one might imagine, a person accused of possessing child pornography is not likely to garner much support or sympathy from a jury member. Oddly enough, the person in the court most likely to show mercy to such a client may just be the sentencing judge.

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The Kingsport Times recently linked an article from the Associated Press regarding the continuing debate over how to properly sentence those persons convicted of violating the child pronography laws, which are primarily federally codified at 18 U.S.C. § 2252. The article claims that the U.S. Sentencing Commission plans to release a report at the end of the year that would propose changes to the sentencing guidelines used on defendants convicted of possessing or distributing child pornography. The reasons for the proposed sentencing changes lie primarily with the severity of the sentencing for child pornography possessors, which have resulted in offenders who distribute and possess child pornography receiving longer prison sentences than those who actually sexually molest or even rape a child.

Perhaps surprisingly, federal court judges may actually agree with proposals to reduce the punishment for such offenses. According to a 2010 survey of federal judges, 70% said the sentencing structures were too high for child pornography convictions. In practice, federal judges issued child pornography sentences that were lower than the sentencing guidelines 45% of the time in 2010. Yet even though the sentences were lower than the sentencing guidelines, the average sentence for child pornography was still higher than all other offenses except murder and kidnapping.

On the other side of the debate are prosecutors and advocates for the victims. As one victim stated, "[those who view or distribute child pornography] need to be taught how much pain they inflict and a greater term of imprisonment will teach them that, (and) will comfort victims seeking justice." A congressman showed dismay over the number of judges who are already issuing lower sentences. "I am concerned that the federal judiciary is failing to consider the severity of child pornography and its victims. This departure rate is disturbing and threatens the most vulnerable among us, our children."

In a recent article for the journal of the National Association of Criminal Defense Lawyers, former Sen. Arlen Specter of Pennsylvania and former AUSA Linda Dale Hoffa criticized the approach by Congress. "The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress," Specter and Hoffa wrote. "In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders."

Even with the Sentencing Commission's upcoming report and criticisms by judges, there are those who believe that Congress will most likely not act. As Professor Jelani Exum from the University Of Toledo College Of Law stated, "You don't have a built-in sympathy. Who's going to stand up and say, 'I'm fighting for child porn possessors [?]'" Former federal prosecutor Linda Hoffa shared Professor Exum's views. "If you vote against these harsher penalties, the sound bite is that you're protecting child pornographers, and that could be the end of somebody's career."

Sixth Circuit Court of Appeals Overturns Sentence of 1 Day Confinement for Man Convicted of Possession of Child Pornography

February 3, 2012, by The McKellar Law Firm, PLLC

In United States v. Bistline, No. 10-3106, 2012 WL 34265, at *1-*15, (6th Cir. Jan. 9, 2012) Richard Bistline pled guilty to knowingly possessing more than three hundred images and videos of child pornography. Most of those images contained eight to ten year old girls being raped by adult men. According to current sentencing guidelines Bistline should have served sixty-three to seventy-eight months behind bars for his offense. The district court that heard his case did not agree. Bistline was sentenced to serve one night in the courthouse jail and ten years supervised release. The decision was appealed and reviewed by the Sixth Circuit Court of Appeals.

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In its written opinion the district court held that the sentencing guidelines under § 2G2.2 were "seriously flawed" because Congress took an active role in crafting the guideline. Essentially the district court felt that Congress should have let the Sentencing Commission do the job that Congress appointed them to do. The Court of Appeals rejected this notion and stated, "Congress can marginalize the (Sentencing) Commission all it wants: Congress created it."

The district court also objected to the guidelines on the belief that two lawyers from the Justice Department lobbied a naive congressman to add sentencing changes to the Amber Alert bill. The Court of Appeals quickly discarded the argument by stating that both Houses of Congress and the President approved the legislation. What happened before that was not the court's concern.

The final objection to § 2G2.2 that was outlined by the district court was that the sentencing guideline was "not arrived at through empirical study and data," citing Kimbrough v. United States, 552 U.S. 85 (2007). The Court of Appeals compared Kimbrough, which outlined how a district court could disagree with a guideline on policy grounds, to the case at bar. They found that the current case was not like Kimbrough because Congress' power to make sentencing policy flows directly from the Constitution.

In determining if the sentence that the district court gave to Bistline was reasonable, the Court of Appeals noted that the crime of possession of child pornography went "virtually unpunished in this case." The Court of Appeals rejected the lower court's theory that Bistline innocently became caught up in a free website and, therefore, did not actively seek the pornography, but that the pornography actively sought him through advertising and/or viruses. It was noted that Bistline knowingly acquired hundreds of images over a period of about one year. With this reasoning the Court of Appeals found that the sentence imposed on Bistline did not reflect the seriousness of his offense as outlined by Congress in § 3553(a). Bistline's sentence was vacated and remanded back to the lower court.

The Sixth Circuit Tackles Craigslist Photos and Strict Liability in Child Pornography and Sex Trafficking Cases

July 22, 2011, by The McKellar Law Firm, PLLC

The Sixth Circuit has recently upheld a Detroit man's conviction for manufacturing and distributing child pornography, transporting a minor with intent to engage in criminal sexual activity, and sex trafficking children. In United States v. Daniels, No. 09-1836, the Sixth Circuit dealt with defendant Robert Daniels, who was convicted of running a prostitution ring in Detroit that included underage girls. While most of the minors were from Detroit, one was brought back to Detroit from Maryland. Daniels also posted a nude photo of one of the minors on craigslist.com as an escort ad. 1260787_hand_on_keyboard.jpg

While Daniels was convicted for the nude photo of the minor even though another prostitute actually took the photo, the most significant aspect of the court's decision relates to posting a pornographic photo of a child on a site like craigslist.com. Under 18 U.S.C. § 2252(a)(2)(A), a person can be guilty for distributing "any child pornography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or affecting interstate or foreign commerce by any means, including a computer." While the issue was whether the image was distributed after it traveled interstate commerce, the court ruled that Daniels's actions were sufficient to be punished under the statute. By uploading the image to craigslist.com, the photo met the "interstate commerce" requirement. Daniels then "distributed" the photo when he verified via a craigslist.com e-mail that he wanted to display the photo to the public.

The court also reinforced the notion that one does not need to know that the victim is a minor in order to be guilty of transporting a minor with intent to engage in sexual activity. 18 U.S.C. § 2423(a) punishes a "person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, ... with intent that the individual engage in prostitution, or in any sexual activity." While Daniels argued that he is not liable since he did not know that the girl he transported from Maryland to Detroit was a minor, the court disagreed. Under the Mann Act, transporting any individual for the purpose of prostitution is a crime. Therefore, the knowledge requirement under § 2423(a) is not a factor that distinguishes innocence from guilt, but rather is used to determine the harshness of the penalty. The court's reasoning was '"context may well rebut the presumption' that a [knowing] requirement applies to every element of a defense." Such was the case here since minors need special protection against sexual exploitation.

Yet even though Daniels was convicted of the above charges, he was not convicted of engaging in a child exploitation enterprise (CEE). To be convicted of CEE, the government must prove that (1) the defendant committed at least three separate predicate offenses that constitute a series of at least three incidents; (2) more than one underage victim was involved; and (3) at least three other people acted "in concert" with the defendant to commit the predicate offenses. While Daniels was guilty of the first two elements, the government did not have enough evidence to prove that Daniels worked with three other people when committing the above offenses. The court determined that in order for someone to have acted "in concert" with Daniels, they must have "had the mens rea required to 'conspire' with him to commit the offense, " or in other words, there must be "a tacit or material understanding among the parties." While there was sufficient evidence that two of Daniels's prostitutes acted "in concert" with him, there was not enough evidence that Daniels acted "in concert" with three other people anytime while manufacturing and distributing child pornography, transporting a minor for purposes of prostitution, or when engaging the minors in sex trafficking. While members of Daniels's family aided Daniels by driving prostitutes to their destinations, there was no evidence that they knew Daniels was involved in the sex trafficking of minors.

Federal Courts Are Departing From Recommended Sentencing Guidelines in Child Porn Cases

Federal child pornography defense lawyers are discovering that more and more courts are declining to follow the Sentencing Guidelines in cases involving receipt and possession of child pornography. The U.S. Sentencing Guidelines are designed to advise federal courts on appropriate sentences based on the severity of the crimes committed and a defendant's criminal history. The Guidelines then suggest an appropriate range of prison time so that judges still have discretion to look at the particular facts and circumstances of a given case while avoiding the widely varying sentences that were common prior to the introduction of the Guidelines. Although these Guidelines are generally followed with little fanfare, federal courts are continuing to depart from the recommended Guidelines range in child pornography cases.

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Persons convicted of trafficking in child pornography can face extremely long prison terms. It is not unusual for such individuals to face decades of prison time, even if they have no prior criminal history and are not charged with any direct sexual contact with a minor. This is because the Sentencing Guidelines provide for a number of increases in "levels" on top of the base offense level. Every added level indicates a more serious offense and therefore results in a longer sentence.

The problem for some courts is that the child pornography Guidelines create increased penalties that apply in the majority - if not virtually all - cases. For example, if a computer is used in "the possession, transmission, receipt, or distribution of [child pornography], or for accessing with intent to view the material" a two-level increase results. U.S.S.G. § 2G2.2. There are also level increases if the pornographic material involves a prepubescent minor or a child under 12, distribution in the expectation of receiving anything of value (including other child pornography), and increases based on the number of images.

As the Second Circuit Court of Appeals noted its recent decision United States v. Dorvee, 616 F3d 174, 186, n.9 (2d Cir. 2010), over 97 percent of cases today involve a computer, nearly 95 percent involve a prepubescent minor, and 96 percent of cases involve at least a two-level enhancement based on the number of images the individual possessed. The bizarre result of these numerous enhancements is that, in this case, if Dorvee had actually sought out and had sex with a 12-year-old child, the applicable Guideline range would be significantly lower than the Guideline range that applied in Dorvee's case, where he never engaged in any sexual contact with a minor. Id. at 187. Moreover, the Court noted that the statutory maximum sentence was actually shorter (240 months) than the low end of the Guideline range (262 months). Id. at 180-81. The Court of Appeals found this to be so unreasonable that it amounted to a substantive error and vacated Dorvee's sentence. Id. at 188.

The Sentence Guidelines are not mandatory; they are intended to be just that: guidelines. They are, however, very influential, and courts do not frequently depart from them without serious consideration and explanation. But Dorvee is one of an increasing number of child pornography cases where courts have determined that the goals of the Sentencing Guidelines are not being advanced, leading the courts to disregard them.

Former Air Force Soldier Sentenced to 15 Years for Paying to Watch 4-year-old Engage in Sexual Activity

In Federal District Court in Atlanta, Georgia, former Air Force Sergeant Charles Caley was sentenced to federal prison by United States Senior District Court Judge J. Owen Forrester for enticing several minors to engage in sexually explicit acts that he viewed via webcam while he was posted to a U.S. Air Force base in Italy. The Defendant has already been court martialed by the Air Force for related child pornography charges and is already serving a 13-month term for those crimes. Following his release from federal prison, the Defendant will be subject to lifetime supervised release and be required to register as a sex offender.

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According to a press release from the U.S. Attorney's Office in the Northern District of Georgia, the Defendant began chatting online with the mother of one of the victims, a woman who lived in Bremen, Georgia. At that time, the Defendant was a master sergeant in the United States Air Force, assigned to the U.S. air base in Aviano, Italy. As the Defendant and the victim's mother became more intimate through online communications, they began to express shared interests in underage and incestual sexual acts. Eventually, in exchange for money, the mother was making her four-year old daughter "available" to the Defendant online, where he would observe the victim as she engaged in a variety of sexually explicit acts.

This pay-per-view scheme expanded at one point to include two other older juvenile females who would frequent the victim's household. The Defendant, again through the webcam, observed these two girls in sexually suggestive poses as well.

The younger victim's mother has already pleaded guilty to distributing child pornography and is currently in federal prison.

United States Attorney Sally Quillian Yates said, "This case sadly and starkly illustrates the global reach the Internet has given to pedophiles. The defendant, while being paid by American taxpayers to live and work in Italy, used government resources to gain access to a very young child living here in Georgia to engage in sexually explicit acts -- acts he observed in real-time while he was online. I commend the hard work by the Air Force, the FBI, and the prosecutors of this office in bringing this man to justice."

A Review of Recent Federal Sexual Exploitation and Child Pornography Sentences

Federal sex crimes encompass a wide variety of criminal action, and as a result, the sentences handed down by federal district court can vary greatly. Here's a quick summary of a few recent sentences involving federal sex crimes around the nation:

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1. A Florida man received a 72-month sentence last week for receipt of child pornography. The defendant was reportedly in possession of approximately 17,500 images of child pornography, including sadistic and masochistic images and depictions of sex acts with children
under twelve.

2. Last month, a North Dakota man was sentenced to 30 years in federal custody on child pornography charges. A federal jury found the defendant guilty of using the internet to download visual depictions of minors engaging in sexually explicit conduct. The sentencing judge ordered the defendant to serve 20 years for receipt of materials involving the sexual exploitation of minors, to be followed by 10 years on a charge of possession of those materials.

3. A 66-year-old California man was sentenced last week to almost 22 years in federal prison after he admitted to persuading a minor to participate in sexually explicit acts for the purpose of filming it. Reportedly, the defendant Baldwin came under investigation by the Federal Bureau of Investigation's Modesto Office and the local Sheriff's Office after a minor victim reported being molested by him from 2005 through early 2010.

4. Last month, a Texas man was sentenced to 20 years after he pled guilty in November 2010 to one count of receiving child pornography. After executing a search warrant at the defendant's residence, a forensic examination of his computer and officers discovered more than 100 images of child pornography. Further, according to the affidavit filed with a criminal complaint, a 16-year-old victim described details of sexual encounters with the defendant that occurred at the defendant's home. The victim stated that they had sexual intercourse and that during one of the sexual encounters, the defendant recorded it and stored it on his computer.

As these cases indicate, child pornography and sexual exploitation of minor cases can carry severe penalties. If you are suspected of being involved with a federal sex crime, act immediately to consult with an experienced federal criminal defense attorney.

Sixth Circuit Rules that Duplicate Images Count Separately under Child Pornography Sentencing Guidelines

March 8, 2011, by The McKellar Law Firm, PLLC

In an issue of first impression, the Sixth Circuit ruled that duplicate digital images, like duplicate hard copy images, count separately for purposes of determining an appropriate sentencing enhancement under USSG § 2G2.2(b)(7). In the case of United States v. Timothy McNerney, No. 09-4011, decided March 1, 2011, the Sixth Circuit addressed several important issues related to child pornography cases, but this blog post is focused only on the sentencing implications of having duplicate electronic copies of child pornography.

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In this case, the Defendant McNerney appealed his sentence of 10 years of incarceration, which he received after entering a guilty plea to one count of receiving and distributing visual depictions of real minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

The facts of the case are as follows: government agents, pursuant to an internet search, determined that McNerney was sharing images of child pornography via a peer-to-peer file-sharing program. After executing a search warrant, federal agents seized McNerney's computer and found numerous child pornography images. The agents also discovered that McNerney had backed up his files on a second hard drive, which created an identical copy of all files (including the child porn) on his computer.

At the sentencing hearing, the trial court calculated McNerney's total offense level pursuant to the Sentencing Guidelines at a level 30, which based on his lack of criminal history, resulted in an advisory sentence range of 97 to 121 months. The trial court calculated McNerney's offense level as follows:

1. The trial court began with a base offense level of 22
2. The trial court then added a two-level enhancement for images of prepubescent minors pursuant to U.S.S.G § 2G2.2(ii)
3. The court added a two-level enhancement for transferring materials over the internet pursuant to U.S.S.G § 2G2.2(b)(3)(F)
4. The court added a two-level enhancement for using a computer in the crime pursuant
to U.S.S.G § 2G2.2(b)(6)
5. The court added a five-level enhancement for having more than 600 images pursuant to U.S.S.G § 2G2.2(b)(7), producing a total offense level of 33.
6. Finally, the court then adjusted McNerney's offense level for acceptance of responsibility,
placing his final offense level at 30, which calls for a guideline range of 97-121 months.

McNerney specifically challenged the sentencing court's 5-level enhancement for possessing 600 or more images, pursuant to U.S.S.G § 2G2.2(b)(7). Section 2G2.2(b)(7) of the Sentencing Guidelines provides for an increase in a defendant's offense level for child pornography based on the number of images possessed as follows: "If the offense involved - (A) at least 10 images, but fewer than 150, increase by 2 levels; (B) at least 150 images, but fewer than 300, increase by 3 levels; (C) at least 300 images, but fewer than 600, increase by 4 levels; and (D) 600 or more images, increase by 5 levels."

McNerney contends that only unique digital images, not duplicate digital images, should be counted in computing an enhancement under this provision of the Sentencing Guidelines. The Sixth Circuit rejected McNerney's argument and delcared that "duplicate visual depictions, digital or otherwise, should each be counted separately for purposes of this enhancement."

In a bit of odd reasoning, the Sixth Circuit Court did write in a footnote that thumbnail images are not counted separately for U.S.S.G. § 2G2.2(b)(7) purposes because thumbnails are not duplicate digital images. Rather, the Court writes, thumbnails are simply previews of digital images that are viewable without opening the digital folder in which the digital images are contained.

Immigration and Customs Enforcement Targets Child Pornography and Sexual Predators

February 23, 2011, by The McKellar Law Firm, PLLC

Persons accused of child pornography or sexual abuse of minors charges typically deal with the FBI or with local police agencies and task forces. However, the Denver Post has an interesting article about the increased role that U.S. Immigration and Customs Enforcement (ICE) is taking in the pursuit of sex criminals.

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According to the Denver Post article, ICE is the largest investigative arm under the Department of Homeland Security, and fighting child pornography, child sexual tourism and trafficking of children is one of ICE's top priorities. "We are working around the globe -- and the violators know no border -- and it is incumbent on us to be nimble from a law enforcement perspective," said David Marwell, Denver's acting special agent in charge.

Similar to local investigating authorities, ICE agents work undercover on peer-to-peer networks on the Internet to track down child pornography and work with local and global partners on capturing the producers of the images. The article reports, "And while many federal, state and local law enforcement agencies are investigating the child-porn problem, ICE has specific statutes it can enforce and a presence around the world with 69 offices in 49 countries."

The ICE website discusses one particularly successful investigation called "Operation Falcon, which" identified 39 websites distributing child pornography and led to the arrest of 1,200 international downloaders and more than 300 U.S. customers. Nine individuals from the United States and Belarus were identified and charged as the principals in this investigation. All principals were convicted on various charges related to money laundering, as well as the production and distribution of child pornography.

It's clear that the Government is not limited by its borders in pursuit of alleged sexual criminals. As the world grows smaller, the reach of investigating authorities grows larger.


Sixth Circuit Rules That Knowledge is a Required Element of Receiving Child Pornography

February 21, 2011, by The McKellar Law Firm, PLLC

Federal child pornography crimes can be very subtle in their distinction from one another, and these subtle differences can result in severe sentencing discrepancies. For instance, one such discrepancy occurs when analyzing the difference between receipt of child pornography (18 U.S.C. § 2252(a)(2)) and possession of child pornography (18 U.S.C. § 2252(a)(4)(b)). The former crime (receipt) requires a minimum 5-year statutory sentence, while the latter crime (possession) does not have a minimum statutory sentence.

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Another comparison that was addressed in United States v. Daniel Szymanski (6th Circuit, February 7, 2011), was whether the mental element of "knowledge" was required in order to convict someone of receipt of child pornography. In Szymanski, the Defendant pled guilty to receiving child pornography and received the minimum mandatory sentence of 5 years. The Defendant appealed his sentence on a number of grounds, but the Sixth Circuit, on its own initiative, overturned the sentencing court's decision because "a defendant charged with receipt of child pornography must have knowledge, not only as to the act of receipt itself, but also as to the fact that the material he is receiving features minors engaged in explicit sexual conduct."

The Sixth Circuit relied heavily on the U.S. Supreme Court case United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), which previously addressed this issue and decided that knowledge was a required element of the crime of receipt of child pornography. The Sixth Circuit court wrote in reference to X-Citement Video:

In other words, the Supreme Court interpreted § 2252(a)(2) to mean that defendant convicted of receiving child pornography must have known, not just that he was receiving something, but that what he was receiving was child pornography.

The Court also succinctly pointed out a crucial difference between the crimes of receipt and possession of child pornography by writing:

But there is a difference between the two offenses, and it is one highlighted by the very Supreme Court case that no one in this proceeding ever explicitly mentioned: the prosecution must prove that the defendant knew at the time of receipt that the material he received featured underage subjects engaged in sexually explicit conduct. See Malik, 385 F.3d at 760 (noting that "the possession offense lacks [this] scienter requirement").

Tennessee Man Sentenced to 25 years in Federal Child Pornography Case

January 5, 2011, by The McKellar Law Firm, PLLC

Persons charged with violation of federal child pornography laws can face severe sentences due to both federal statutes and the federal sentencing guidelines. A local Tennessee child pornography case illustrates this point well. As reported by Jamie Satterfield in the Knox News Sentinel, Joseph Wayne Jennings was sentenced to 25 years in prison for various child pornography and sexual exploitation of a minor crimes. Jennings was arrested in June 2009 at a Morristown, Tennessee, hotel after he arrived expecting to have sex with an 8-year-old girl. Prosecutors allege that in addition to possessing child pornography, Jennings was trying to entice mothers to set up sexual encounters between Jennings and their young daughters.

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Under U.S. Sentencing Guidelines § 2G2.2, Jennings' advisory guideline range was 292-365 months of incarceration, and he was subject to a minimum term of 120 months as to Count One (using a means of interstate commerce to attempt to induce a minor to engage in illegal sexual activity), a minimum term of 60 months as to each of Counts Two and
Three (distribution and receipt of child pornography) and a maximum term of imprisonment of
120 months imprisonment as to Count Four (possession of child pornography).

Ms. Satterfield writes, "Joseph Wayne Jennings faced more punishment for looking at pictures of child rape victims than he did for trying to lure a child to be raped. His case highlights a sentencing disparity long claimed by defense attorneys and increasingly questioned by federal judges nationwide, including some in East Tennessee, as the average sentence for suspects caught with child pornography has jumped 443 percent over a 10-year period."

Determining the correct sentence for someone convicted of Sexual Exploitation of a Child, pursuant to 18 U.S.C. § 2251, or of possessing, receiving, or distributing Child Pornography, pursuant to 18 U.S.C. § 2252, takes a careful analysis of both the statutes involved and the Federal Sentencing Guidelines.


Additional Resources
"Porn Sentencing Rules Puzzle," Jamie Satterfield, Knox News Sentinel (Online Edition), January 5, 2011.
18 U.S.C. § 2251
18 U.S.C. § 2252

Naked Pictures of Girlfriend Results in Child Porn Conviction

December 29, 2010, by The McKellar Law Firm, PLLC

Could receiving naked pictures of your girlfriend or boyfriend result in criminal charges for receiving child porn? For former police officer James Cifala, the answer is yes. Under Maryland state law, 48-year-old Cifala's sexual relationship with a 16-year-old was not illegal, but receiving naked pictures of her was.

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Cifala was sentenced to 5 years in federal prison after pleading guilty to one count of receiving child pornography. The sentence imposed by U.S. District Judge Catherine C. Blake was the lowest statutory sentence possible, but the sentence was still higher than the federal sentencing guidelines.

As reported by The Capital, Prosecutors claimed that Cifala first met the victim in 2007, when she was only 14. The two spoke about having sex, but Cifala told her they had to wait until she was 16 years old - when it would be legal. Over the next two years, Cifala used social networking websites and a prepaid wireless phone to stay in contact with the victim. Cifala and the victim traded more than 1,300 text and picture messages in the three weeks between Aug. 14 and Sept. 6, 2009.

18 U.S.C. § 2252 sets forth federal criminal law regarding child pornography. A person is specifically prohibited from receiving images of a sexual nature involving minors. As Mr. Cifala learned, this law applies to "sexting" cases involving minors as well.


Additional Resources
"Ex-Cop Gets Five Years for Child Porn," The Capital (online edition), December 29, 2010
18 U.S.C. § 2252

Affirmative Defenses to Child Pornography Charges

November 11, 2010, by The McKellar Law Firm, PLLC

Child pornography charges are among the most serious allegations that a federal criminal defense lawyer can handle. As part of any good defense, an attorney must be aware of any affirmative defenses that the law provides to protect one's clients.

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18 U.S.C. Section 2252 is one of many laws addressing sexual exploitation of minors. 18 U.S.C. Section 2252(a)(4)(b) specifically says:

(B) knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if-- (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section.

However, this same statute also provides statutory affirmative defenses in subsection (c) as follows:

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.

If you believe that any of these affirmative defenses may apply to you, contact an experienced criminal defense attorney immediately. Perhaps more than any other type of case, moving quickly in a child pornography case is of utmost importance to a successful defense.