Possession of child pornography is a serious offense, regardless of whether your case is in state or federal court. The key difference between state and federal charges lies with the draconian penalties imposed for someone who is convicted of possession or distribution of child pornography.
Let's use an example to illustrate how things work in federal court. I have a fictious client. His name is Joe Q. Citizen. Joe is 50 years old. Single. A recluse. Not much of a social life. Joe suffers from alcohol addiction and is clinically depressed. Joe is also online. All the time. Joe likes to hang out in chat rooms and over the years, has developed a dark secret. He likes child pornography. The age of the children ranges from 12 - 15 years old. All girls.
One day Joe is online at his favorite chat room where he likes to trade porn. A new person comes into the chatroom and asks Joe if he has any pix to trade. Joe says yes and ultimately, they exchange approximately 30 child pornography pics. Unbeknownst to Joe, his new friend is a federal agent. The pics that Joe received are corrupted, which prevents Joe from viewing them.
2 days later, a team of federal law enforcement officers arrives at Joe's home. They seize his desktop and laptop computers, his cell phone and a bunch of external hard drives and CDs. They tell Joe he's not under arrest and ask if he's willing to speak with them about the child pornography. Joe says "yes" and spills his guts. The feds leave and 3 months later, Joe is indicted by a Federal Grand Jury on multiple counts of possession and distribution of child pornography. Joes is facing a sentence ranging from 5 years to 20 years based on the federal statute.
Joe comes into Court for his arraignment and the Government announces that they are seeking pre-trial detention. Due in large part to the efforts of his attorney conducted on Joe's behalf PRIOR to his arraignment, the judge denies the request for detention (following a lengthy hearing) and Joe is released with the condition that he be electronically monitored and that his computer be subject to regular search.
Assuming that there are no constitutional or proof issues, a Guidelines calculation is undertaken with the following assumed facts for this hypothetical:
- Distribution starts at a base level 22
- 2 point enhancement for using a computer to commit the crime = 24
- 5 point enhancement for having in excess of 600 images (each video constitutes 75 images so you can see how quickly these add up) = 29
- 4 point enhancement for having images that depict sadistic, masochistic conduct = 33
- 5 point enahancement for distribution of images for "a thing of value" (IE, trading porn pics) = 38
Guideline calculation based on a criminal history category I and an offense level of 38 = 235 - 293 months in federal prison. However, because the client accepted responsibility for his conduct and gave the government early notification of plea, a 3 point reduction is warranted which equals 168 - 210 months in federal prison.
One of the biggest issues in child pornography cases concerns whether or not the person will be charged with distribution or possession. Possession carries with it a maximum sentence of 10 years. Distribution carries a sentence of 5 years to 20 years in prison. Under either scenario, the judge must consider the imposition of the Sentencing Guidelines.
One of the biggest battles concerns the calculation of the Guideline sentences. The Guidelines must be considered by the sentencing judge. If the Judge is going to depart from the Guideline sentence, a reason must be given. This is where a good federal defense attorney can make the difference between decades in prison vs. years in prison.