Representing Defendants Charged with Federal Child Pornography Crimes in Courts Throughout the Nation
The Federal government is devoting an enormous amount of its law enforcement resources to prosecute child pornography cases. These cases will always garner political support and funding and as a result, we are seeing many of these types of prosecutions around the country.
It is imperative that a person charged in federal court with possession and/or distributing child pornography retain a law firm with attorneys experienced in child pornography cases. The attorney must understand how the sentencing guidelines for these offenses operate and how they have changed over time.
At Broden & Mickelsen we are dedicated to zealously defending our clients. When one is charged with child pornography offenses they will usually face the might of law enforcement agents, prosecutors and judges, justice. They require highly trained, dedicated and skillful advocates protecting their rights and interests.
Click here to see one of the comprehensive sentencing memorandums Broden and Mickelsen prepared in a child pornography case.
Gathering Evidence of a Crime
In Federal court, child pornography cases are typically generated by means of an undercover law enforcement officer making use of file-sharing programs such as “lime-wire” or “gigatribe” and searching the files of other users of with typical queries that yield child pornography. Once the undercover officer identifies a file-sharing user in possession of child pornography on his or her computer, the law enforcement agents execute a search warrant on the user’s house (located by obtaining IP data from the person’s internet provider), in the early morning hours. In order to preclude the defense “I didn’t know that material was on my computer,” the agents interview the suspected primary user of the computer while that user is not under arrest and coax the user to admit to knowingly possessing the child pornography. While it is almost never in the best interests of a person under investigation for having committed any federal crime to consent to questioning by federal investigators without a lawyer present, the efforts by law enforcement agents conducting these type of searches in child pornography cases often yield damaging admissions.
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 files that a person thought had been deleted will be found in the computer’s hidden space.
Penalty of Child Pornography in Federal Court
The Federal penalties for possession of child pornography are incredibly harsh. If the defendant truly was interested in child pornography the defendant usually has collected numerous images. In these circumstances the defendant’s presumptive sentence, according the United States Sentencing Guidelines for a first time offender, can approach 12-20 years of imprisonment. Indeed, the penalties under the sentencing guidelines for possession of child pornography obtained through file-sharing can often be higher than the penalties provided for those that physically abuse children.
Broden & Mickelsen Experience
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. In many districts, they 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 and 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.
When the firm defends someone charged with possession of child pornography, we first attempt to ascertain whether there is a defense to the charge itself. In order to be guilty of child pornography a defendant has to knowingly possess the illicit material. If the defendant has not confessed to knowingly possessing the material, it may be that another individual has loaded the material onto the defendant’s computer. In a few unusual cases, it has been established that a third party virtually “hijacked” the defendant’s computer by means of a wireless connection in order to park their pornography on someone else’s computer in order to avoid detection by possessing the material on their own computer. Likewise, there are instances where a person accidentally downloads child pornography. Likewise, an attorney can determine if the images qualifies legally as “child pornography.”A skilled attorney will also analyze any “confessions” to determine if they are subject to a motion to suppress.
If it is not possible to establish a defense to the charge, one must focus one’s efforts on sentencing. Hopefully for the defendant, a credible case can be made that the defendant’s activities never went beyond observing depictions of child sex abuse. Sometimes it can be helpful to have a polygraph examination to support this assertion. In addition, it is often helpful to submit a detailed psychological analysis of the defendant to the court for consideration when imposing sentence. Finally it is important to prepare the defendant for sentencing by showing that they are on the road to rehabilitation.