Federal Child Porn Charges

207-571-8146

Federal Child Pornography Charges Defense Lawyers

Legal Counsel for Portland, Biddeford, Saco, Bangor and Augusta, Maine

Anytime you're charged with a criminal offense in federal court, you're facing years in prison; not days, weeks, or months.  The Federal Criminal Code is the size of a NYC phonebook and is as complex in scope as the US Tax Code.  There is literally a crime for every conceivable offense delineated in the Federal Criminal Code.  I like to use the following analogy for clients when describing the differences between Maine state court and US Federal court.  Being in State court is like walking on planet earth.   The grass is green.  The sky is blue.  We all breathe oxygen.  Everything is familiar.  You know what to expect when in State court.  Federal court is akin to being on the moon... without a helmet and no oxygen.  Everything is frightenly foreign and unfamiliar.  The dangers associated with even a minor misstep can spell certain doom for the client and his case.  In summary, you want to avoid having your case picked up by the Feds for prosecution; at all costs.

There are three major child pornography offenses under federal law and are listed in order, from "least severe" to "most severe".

  1. Possession of Child Pornography
  2. Production in Child Pornography
  3. Trafficking of Child Pornography

Keep in mind that less severe is a misnomer.  ALL federal child pornography charges considered felonies and therefore, are serious.  We're just talking about degrees of severity and the difference between years versus decades in a federal prison.

Child Pornography Defined

Federal law prohibits the sale, use or possession of sexually explicit materials that depict minors and prepubescent children.  Images are defined under the federal statutes as children involved in sexual acts or images that are sexually suggestive.  For example, if a person is in possession of an image or video that depicts a prepubescent child masturbating by himself or herself, that constitutes child pornography under federal law.

Typical Federal Child Pornography Charges

 
Possession of Child Pornography

Anyone who is found in possession of contraband that constitutes child pornography runs the risk of being prosecuted by the Federal Government if the image was used in interstate commerce.  Interstate commerce is commonly implicated in cases where either the US Mail or a computer was used to view and/or trade the images.

The vast majority of federal child porn cases involve low-end porn "consumers".  The vast majority of these offenders have no criminal record and pose no threat to the community. Oftentimes, the urges to view child pornography are quite complex and aren't necessarily evocative of the stereotypical criminal mind.  Instead, the typical child porn possession offender is a white, middle-aged male who likely has few, if any, friends and would be considered a loner by normal standard.  Most of the offenders are single and without children.  

The typical offender usually started out viewing "standard" adult pornography, eventually gravitating towards porn with younger and younger actresses.  Perhaps the stereotypical offender stumbled across a web feed from a young girl's webcam and became fascinated and later, addicted to this form of pornography.  The typical offender oftentimes suffers from substance abuse addiction issues and mental health issues such as severe depression.  The typical offender will turn to drugs or alcohol and the child porn in order to relieve stress, tension and/or feelings of depression.  What these people really need is counseling and treatment, not a prison sentence.

Distribution of Child Pornography

Distribution is a rather serious charge and is accompanied by mandatory minimum sentences.  A distribution charge is much more serious than simple possession and assumes a higher level of culpability in the offender than a typical child porn possession case.

In order to be charged with distribution under federal law, the offender must sell the images or trade the images for valuable consideration.  For example, if you and a "friend" are exchanging emails online about child porn and you tell the "friend" that you have a particular image that is especially arousing, your friend may ask you for a copy.  If you just give it to him, it may qualify as an enhancement under the Sentencing Guidelines but that, in and of itself, does not qualify as a distribution charge.  However, if you offered to trade the image to your "friend" in exchange for an image from his collection, that would qualify as distribution under 18 U.S.C. sect. 2252(a).  

It is unlikely that the Feds will pursue distribution charges against you if the distribution was limited to a single act, such as the one described above.  However, if you are regularly engaged in trading child porn online via email or share ware sites, you can expect that the Feds will indeed pursue distribution charges.

Production of Child Pornography

Child porn producers are the most sought after and the most likely to receive the full brunt of the draconian Federal child porn laws.  And for good reason.  These are the people responsible for enticing, forcing or abducting children and ultimately, producing film of these children engaging in sexual acts, oftentimes with adults, for the gratification of the masses.   

Child porn producers are subject to mandatory minimum sentences and draconian Guideline recommendations.  Sadly, many child porn productions are made by the parents of the exploited children and oftentimes, these children are toddlers or even infants; too young to protest or resist.  These are the most heinous of offenders and if you fall into this category, expect zero mercy at sentencing from the US Attorney or the Court.

In cases where the offender is the parent, the offender may be someone who has spent a long period of time "grooming" the child, whereby the relationship, which is initially built on trust, is gradually transformed into a sexual relationship.  Grooming of children is especially insidious because it is normally done over a period of time where the "groomer" builds a false sense of trust with, and authority over, the child victim.  In these cases, even children as old as 14 years old feel that they cannot extricate themselves from the situation and appear to willingly capitulate to the groomer's demands.

How The Federal Government Gets Involved

The Feds get involved and have jurisdiction in your case if the image(s) is somehow involved in interstate commerce (the infamous Commerce Clause catchall provision).  Since the images are changing hands over the internet, this constitutes interstate commerce and the Feds have an absolute right to exercise jurisdiction in your case and charge you federally.  

A rather sneaky way that the Commerce Clause provision snares people in the federal law web is as follows: the Commerce Clause also covers any equipment or items used to view or access the illegal material.  For example, your "friend" gives you a jump drive containing child pornography and you use your computer to access and view that material, the Commerce Clause is implicated.  Why?  Because the computer (and all of its internal components) and the jump drive all travelled through interstate commerce.  Your case took place in Maine.  The jump drive was made in Korea and distributed from a warehouse in South Carolina, which made its way up the coast to a Staples store in Biddeford, Maine.  That tiny little jump drive alone implicates the Commerce Clause and subjects you to federal criminal liability.

Once the Feds are involved, an investigation begins.  The most common way for people to share their illicit child porn collections is through online shareware services such as Frost Wire, Bear Share and many other well-known services.  The Feds have the ability to view your porn collection and access it as long as the default setting on your collection is set to "share".  That way, anyone, including the Feds, have access to it.  The frightening part of this whole thing is that you, the defendant, don't even have to actively seek to share the collection with anyone.  In fact, you may intend to keep it all to yourself but this "backdoor" into your computer allows the Feds to access it and even charge you as a distributor of child pornography.

Once the investigation is complete, expect local and federal law enforcement agents (think Department of Homeland Security) to hit your home with a search warrant, where they'll seize all of your computers, hard drives, floppy disks, jump drives and any other form of media storage devices in your home.  Oh, and if any of these items contain child porn on them, you'll never get them back.

No one is above the law in the Fed's eyes and they're willing to arrest anyone who violates it.  Take the James Cameron case as an example.  Mr. Cameron was Maine's top drug prosecutor.  He sent numerous people to state prison for long stints for drug offenses.  However, Mr. Cameron had a dirty secret.  He had a voracious appetite for child pornography.  The Feds learned of his dirty secret and ultimately, busted him.  Following trial, he was found guilty on a number of child porn counts and while out on post-conviction bail, jumped bail and fled.  After being apprehended, Mr. Cameron was sentenced to 15 years and 9 months for his offenses.

If your case doesn't proceed to trial (and most don't), then you need to be prepared to have the case tee'd up for a favorable sentence.  The Office of Probation & Parole will prepare a pre-sentence report.  Your attorney will have an opportunity to object to and/or contest certain findings or recommendations in the report.  The findings and recommendations in the report will be referred to in your attorney's sentencing memorandum and will likely be relied on to an extent by the judge.  Refer to the page concerning the Federal Sentencing Guidelines to learn about criminal history categories, base offense levels and enhancements.  

Penalties and Sentencing

 
Possession of Child Pornography

There are no mandatory minimum sentences for first time offenders convicted of possession child pornography.  However, there is a maximum sentence of 10 years in these cases.  However, the myriad of guideline enhancements can actually push the recommended range well above 10 years.  With that said, the maximum sentence cannot exceed 10 years and even with all of the enhancements, which invariably apply in every child porn possession case, penalties can be reduced from the decade maximum to well under 24 months.  Of course, this assumes that the offender retained an attorney familiar with federal child porn cases and knows the steps to take in order to ensure a favorable sentence by the presiding federal judge.  There are many steps that can be taken to reduce your potential sentencing exposure but many of these steps will need to be taken soon after arrest and well before sentencing.

Distribution of Child Pornography

For those of you who were charged with distributing child porn, you're in a tough place as you face the following penalties:

  • 5 year mandatory minimum prison sentence
  • 20 year maximum prison sentence

Of course, the only way to avoid the mandatory minimum prison sentence is through a cooperation agreement and a 5k.1 departure recommendation from the Government.  Getting a 5k.1 departure recommendation from the Feds is about as rare as finding hens teeth.  IE, it's pretty unlikely to happen.

With the 20 year maximum prison sentence, the enhancements that I referred to earlier in this article can easily bring your prison exposure above 15 years; even if you have a clean criminal history.  The enhancements codified in the Sentencing Guidelines are draconian and apply in every, single distribution case.

Production of Child Pornography

If you've been charged with child porn production expect the following penalties to apply in your case:

  • 15 year mandatory minimum prison sentence
  • 30 year maximum prison sentence

It is unlikely that you'll get a dramatic departure from the Guideline recommended sentence as this crime is considered to be the worst of all offenses.  Keep in mind that the aforementioned penalties apply to first offenses only.  Oftentimes, persons convicted of producing child porn have a history in the child porn business as either a consumer or distributor.  Therefore, the penalties will likely be even more harsh than I've suggested.

Restitution

Perhaps the most infamous of all child porn images floating around in personal collections and cyberspace concerns a victim named "Amy".  Amy was victimized at a young age and later in life learned that those images were still being actively traded and viewed by thousands and thousands of viewers and collectors.  Upon learning of this horrifying fact, she once again experienced severe emotional pain, humiliation and sought the services of a psychiatrist and ultimately, an attorney to recover monetary damages for her continued re-victimization.

Up until 2013, most federal courts allowed "Amy" and other known victims to recover monetary damages from every, single person convicted of child porn charges where her image was found amongst the collection.  While most courts required "Amy" to demonstrate some type of proximate cause between the offender's crime and the victim's individual harm or damages, some courts allowed full monetary recover without a showing of proximate harm.  This has resulted in millions of $ recovered from defendants over the years and across the country.  

However, the US Supreme Court overturned the congressional law that served as the lynchpin to Amy's and other victim's restitution claims.  Congress will have to readdress the restitution statute and is expected to do so sometime in 2015.

Conclusion

If you've been charged with a crime involving child pornography, you may be facing mandatory minimum prison sentences and even sentences that approach prison terms of up to 30 years.  You need an advocate and a skilled tactician to either minimize the damage at sentencing or who can successfully defend the case at trial.

Attorney William T. Bly is that attorney. Call the office at (207) 571-8146 for a free consultation.  Don't go it alone and don't make the wrong call by calling an inexperienced federal attorney.

The Law Office of William Bly

Here at The Law Office of William T. Bly, we provide professional and aggressive criminal defense representation that exceeds the expectations of our clients and secures their freedom and their future.

Contact Us Today

What distinguishes our firm from the numerous law firms throughout the state is that we genuinely care about the well-being of our clients. Because Attorney Bly is a sole practitioner, every client receives hands-on and personalized attention from Attorney Bly and our staff throughout the entirety of their case.

Menu