Possession of child pornography can result in some of the most severest punishments under the federal system. Most cases under 18 U.S.C. 2252 turn on one of three issues: (1) whether the person had knowledge child pornography was being downloaded to his computer; (2) whether the person can be held liable for possessing child pornography on another person’s computer; or (3) whether the case implicates a “prompt deletion” defense under 18 U.S.C. 2252(c). There may be other issues involved, but these three are the main issues the Government uses to obtain convictions under the statute.

The Government must prove:

• You knowingly possessed or accessed with the intent to view any material that contained any visual depiction of a minor engaging in sexually explicit conduct;

• The items have some connection to interstate or foreign commerce;

• That the producing of such visual depiction involved the use of a minor engaging in sexually explicit conduct;

• The visual depiction was of a minor engaged in a sexually explicit conduct; and

• You knew that such visual depiction was of sexually explicit conduct, and that at least one of the persons engaged in sexually explicit conduct in such visual depiction was a minor.

Constructive possession is enough to sustain a conviction. See e.g.s.,  United States v. Villasenor, 236 F.3d 220, 223 (5th Cir. 2000); United States v. Layne, 43 F.3d 127, 131 (5th Cir. 1995).

“Knowledge” Isn’t Hard for the Government to Prove

One of our recent appeals illustrates the difficulties of defending these kinds of cases. Agents of the Internet Crimes Against Children task force were conducting undercover operations on a peer-to-peer network called ARES. ARES is a network where users can connect and share files directly from each other’s computers. Agents were able to trace CP files to the defendant’s restaurant because each CP file contains a unique digital fingerprint, and they were about to download at least one CP file from the defendant’s computer using the open network.

On appeal, Sosa-Pintor argued that he hadn’t knowingly downloaded or distributed child pornography. The court upheld his conviction, explaining that while he was not a computer technician, he “knew enough about ARES and computers generally to support the verdict that [he] knowingly distributed child pornography through the shared folder.” The court observed that he seemed to acknowledge to the officers who had raided his restaurant where his computer was kept that he understood how the ARES sharing folder worked.

You can read the case here: United States v. Sosa-Pintor

Sentencing Strategies

The United States Sentencing Guidelines prescribe long sentences for convictions but, fortunately, many judges can be persuaded to disregard the prescribed advisory range. There are multiple reasons why they might do this:

• There was a lack of thoughtful study by the Sentencing Commission before it increased the prescribed offense levels;

• The Guidelines basically prescribe sentences at or near the statutory maximum penalty for all defendants; and

• There is a disparity of punishments between contact offenses and those charged with only having contact with video or images.

Variances pursuant to 18 U.S.C. 3553(a) are another strategy. It all depends on the case and the advocacy of counsel. All in all, the presentation of mitigating factors is extremely important in these types of cases.