Federal prosecutors are prosecuting child pornography offenses at an astounding rate both here in the Northern District of Texas and throughout the country. Because of Broden & Micklesen’s reputation as one of the preeminent federal criminal defense firms in the United States, we were recently hired to represent the husband of an FBI agent who had been charged in federal court with distribution of child pornography. While we often have to aggressively take on federal law enforcement agents in court, it was flattering that, when one of their own was in trouble, they turned to our firm. The case of the agent’s husband is typical of how many child pornography cases usually arise and how they are prosecuted.
Often times, a federal agent, with a file sharing program, such as LimeWire, will sit at his computer in a distant state (in the case of the FBI agent’s husband, the federal agent was in South Carolina and the client was in Texas) and send search terms that he or she expects will identify computers with activated file sharing capabilities that have child pornography on them. Child pornography is defined in the United States Code as meaning:
any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where–
A. the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
B. such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
C. such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
Once the agent locates a computer with alleged child pornography, he obtains images from the that computer using the file sharing program. From there, the agent will get the ip address of the computer and obtain a search warrant from the computer’s internet provider to obtain the physical address where the computer is located. The government then obtains a search warrant for the residence and the computer. The search is normally conducted in the early hours of the morning. The adults in the home are aggressively questioned in order to determine who was using the computer to download the alleged child pornography. Usually, in an effort to protect others in the home, the person who downloaded the alleged pornography admits to having done so or at least admits that they are the one who uses the computer in question. All computers in the home are then seized and the person is arrested. Often if there are children in the home, Child Protective Services will get involved and interview the children.
Many people believe that by deleting a file on a computer, the file is completely “wiped” off the computer. Often people charged with child pornography offenses learn the hard way that this is not true. Law enforcement will send the seized computers off for a complete forensic analysis and often files that a person thought had been deleted will be found in the computer’s unallocated space.
In our experience, a person arrested for a child pornography offense will normally have no criminal record and no familiarity with the criminal justice system. He will truly feel like he has fallen through the looking glass. In many districts, he will be charged with DISTRIBUTION of child pornography since it was “distributed” through the file sharing program. Distribution charges in federal court carry a five year mandatory minimum prison sentence and the person is NOT eligible for probation. Moreover, while Broden & Mickelsen has, in many instances, been able to obtain the release of their clients pending trial, there is a presumption in the Bail Reform Act that no bond be set in these type of cases and the person should be detained pending trial.
It is very important that a person who finds themselves in this position hire an attorney skilled in federal court and skilled in defending child pornography case IMMEDIATELY. A skilled attorney will increase the chances that the person will be released pending resolution of the charges. A skilled attorney can also arrange for his own forensic analysis of the person’s computer to determine if the alleged child pornography was inadvertently placed on the computer or if there is some other defense to the charges. Likewise, he cna determine if the images qualify legally as “child pornography.”A skilled attorney will also analyze any “confessions” to determine if they are subject to a motion to suppress.
In our experience, many child pornography cases do ultimately wind up in a guilty plea given that, as mentioned above, the person will often have admitted to the offense at the time their computer is seized. Nevertheless, this should only come after an experience lawyer fully evaluates the case. Moreover, if a person is even considering pleading guilty to a child pornography offense in federal court, it is imperative that the person’s attorney understands the federal sentencing guidelines inside and out. The federal sentencing guidelines, although advisory, attempt to guide judges in setting sentences. Unfortunately, over the past decade, the recommended imprisonment ranges for child pornography offenses have skyrocketed as a result of politicians attempting to curry favor with the public.
It has gotten so ridiculous that many times a person who downloads child pornography and makes it available with a file sharing program actually faces a much harsher sentence than a person actually abuses a child. In a recent case, based upon the number of images on his computer and other factors, the sentencing guidelines for a client we represented ,who was charged with distribution of child pornography through a file sharing program ,actually faced 151-188 months in prison. We filed a sentencing memorandum, attempting to show the judge how dramatically the guidelines for these offense have been increased over the years by showing what sentence the guidelines would have called for over the past decade:
1987-11/1990 12-18 months
11/1990-11/1996 21-27 months
11/1996-11/2000 41-51 months
11/2000-4/2003 70-87 months
4/2003-11/2004 87-108 months
11/2004-pres. 151-188 months
Likewise, we pointed out that, had the client actually contacted a twelve year-old girl over the Internet, convinced her to meet him, and then the two engaged in repeated sexual acts, the client’s guidelines would only be 70-87 months- less than half of what he was facing for having images of child pornography on his computer. We even pointed out, that under the sentencing guidelines, our client faced the same sentence as a defendant in a reported case who had paid $20 to have a mother hold down her nine year-old child while the defendant raped the young girl twice a week for two years.
To see the full sentencing memorandum, click here: SENTENCING MEMORANDUM
In more than in any other type of case, judges are ignoring the sentencing guidelines in child pornography cases. Indeed, recent statistics show that judges in approximately 50 percent of the cases are imposing sentences in child pornography cases lower than provided for by the sentencing guidelines (although recall that, in distribution cases, there is a mandatary minimum sentence of five years). In one case, the judge wrote:
The guidelines for child exploitation offenses were not developed using an empirical approach by the Sentencing Commission, but rather were mainly promulgated in response to statutory directives. Specifically, the Protect Act directly amended guideline 2G2.2 by amending the guideline enhancements for specific offense characteristics. These modifications do not appear to be based on any sort of empirical data, and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses.
The bottom line is that Congress has truly gone mad in increasing the penalties in child pornography cases. Therefore, if you find yourself charged in federal court with a child pornography offense, you must have a skilled attorney that knows how to defense these cases and who knows how to “deconstrtuct” the sentencing guidelines in these type of cases. Even if you have to go outside the district in which you are charged, you owe it to yourself to find an attorney who is an expert in this area. At the end of the day, it could save you from spending over a decade of your life in prison!
If you are charged with a child pornography offense, we urge you to call Clint Broden or Mick Mickelsen and we will consult with you about your case at no charge.