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Maryland Federal Child Pornography Lawyer
A Maryland federal child pornography lawyer can provide legal guidance and protection to individuals accused of receiving or distributing child pornography. It can be extremely intimidating to be charged with or investigated for possessing illicit images of minors, but it’s possible to protect your rights by retaining an experienced federal defense attorney.
Child pornography cases involve complicated computer forensic, search and seizure, and United States Sentencing Guideline interpretation issues. A key to defending these matters is to overcome the challenge of the prejudicial effect that the disturbing nature of the images and videos that may be potentially displayed have on a judge or jury. Mounting a defense to charges of possession or receipt of child pornography requires knowledge of the law, an aggressive investigation of the facts and technology involved, and persistence.
The stakes in these cases are incredibly high. In 1997, those convicted of federal child pornography offenses received a mean sentence of 20.59 months. By 2010, the mean sentence had jumped 500 percent to 118 months. The vast majority of those convicted in 2010 had no prior criminal record at the time they were sentenced.
Working with a Maryland federal child pornography lawyer who has experience defending clients facing these serious charges is very important and can open up defense options you might not have known were available to you.
The Definition of Child Pornography
“Child pornography” is defined under federal law, 18 USC § 2252 and § 2256, as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image of a minor [anyone under 18 years of age] engaging in sexually explicit conduct. The image may be of an actual minor, a digital or computer-generate image that is indistinguishable of an actual minor, or a visual depiction that has been modified to appear that someone recognizable by face or distinguishing feature as an actual person who was a minor at the time the image was modified.
- Child Pornography Charge Information
- Evidence in Maryland Federal Child Pornography Investigations
- Federal Child Pornography Arrests
- Federal Arrest Process in Maryland Federal Child Pornography Cases
- Arraignments in Maryland Federal Child Pornography Cases
- Pleas in Maryland Federal Child Pornography Cases
- Post Arrest Child Pornography Investigations in Maryland
- Interacting With Law Enforcement in An MD Federal Child Pornography Case
- Role of An Attorney in Dealing With Federal Child Pornography Investigations
- Prosecution of Maryland Federal Child Pornography Cases
- Sentencing in Federal Child Pornography Cases
- Preparing For a Federal Child Pornography Trial
“Sexually explicit conduct,” pursuant to 18 USC § 2256, covers a variety of actual or simulated acts, including sexual intercourse, sadistic or masochistic abuse, lascivious exhibition of the genitals or pubic area, and bestiality.
A Maryland federal child pornography attorney can explain in detail how these very specific definitions might apply to the facts and circumstances associated with your charges.
Possession & Receipt of Child Pornography
There are a variety of different child pornography related offenses you can face as Federal law prohibits both “receipt” (18 USC § 2252 (a)(2)) and “possession” (18 USC § 2252 (4)(B))of child pornography, but establishes vastly different penalties for these offenses – a mandatory minimum 5 year sentence for receipt but no mandatory minimum sentence for a first time possession offense. If a person has a prior sex offense conviction there is a mandatory minimum sentence of 15 years for receipt and a 10 year mandatory minimum sentence for possession upon conviction.
Double Jeopardy Issues Related to Possession & Receipt
Typically, a law enforcement investigation regarding child pornography begins with officers tracking the alleged download of suspected images to a specific Internet Protocol (“IP”) address. This is eventually linked to a physical address and a search warrant is executed. If child pornography is discovered upon search of a computer’s hard drive at that address, then the defendant linked to that IP address is typically charged with possession of child pornography. There is also evidence that a defendant allegedly “received” the child pornography because law enforcement officers are usually able to pinpoint when the download occurred. This gives rise to charges of both possession and receipt of child pornography.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects someone from being punished twice for the same criminal offense. The Supreme Court established a test in Blockburger v. United States, 55 U.S. 299 (1932) to determine whether two statutes proscribe a single crime: “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not. Id. at 304. In other words, if one offense is a lesser included offense of the other, then a defendant cannot be punished for both. The Blockburger test relies upon the principle that Congress does not normally intend to impose two punishments when different statutes prohibit the same offense. However, this is not prohibited as long as Congress clearly shows its intent to do so.
In United States v. Davenport, 519 F.3d 940 (9th Cir. 2008) the Ninth Circuit was the first court to address whether “possession” of child pornography was a lesser included offense of “receiving” child pornography under Blockburger. The Davenport Court used the Blockburger test and ruled that “a conviction for receipt necessarily includes proof of the elements required for conviction under possession, and possession is a lesser included offense of receipt.” Id. at 945. The Court accepted the idea that it is impossible to receive something without, at the time of receipt, also possessing it. Id. The Court held that the convictions violated the Double Jeopardy Clause and sent to case back to the trial court so that one of the convictions could be vacated. However, the majority [it was a 2-1 decision] concluded that the presumption against multiple punishment could be overcome by a clear expression of legislative intent by Congress. Soon after the Davenport opinion was issued, the Third Circuit, in United States v. Miller, 527 F.3d 54, 72 (3d Cir. 2008), held that “possessing” child pornography is a lesser included offense of “receiving” it pursuant to Blockburger.
Defenses to Maryland Federal Child Pornography Charges
There is an inherent built-in prejudice against a defendant charged with these offenses that is greater than that related to other charges because the nature of the images and videos that may be potentially displayed to a jury are usually disturbing. A primary goal of the representation in this type of case is to get a jury or judge to take an objective view of other evidence that might show that there was no violation of the law beyond a reasonable doubt without being overwhelmed by the content of the images.
Aggressive investigation by a Maryland federal child pornography lawyer may reveal that the computer containing images does not in fact belong to the person accused or that someone else had access to the computer. As well, an experienced hacker can hide files on a computer and make evidence of the downloading disappear. It’s important to have the computer and images at issue examined by a cyber-expert to flesh out these possible defenses.
There are also affirmative defenses to possession of child pornography recognized specifically in 18 USC § 2252 (4)(c) that the person accused 1) possessed less than three matters containing any visual depiction; 2) promptly and in good faith took reasonable steps to destroy each depiction or reported the matter to law enforcement and allowed it access to it.
Sentencing in Maryland Federal Child Pornography Cases
Given the potential mandatory minimum sentences, the sex offender registration requirements, harsh conditions of supervised release or probation, such as random polygraph examinations, stay-away orders from public places, restrictions on movement, internet use and employment, it’s important to have an attorney who is knowledgeable about what steps to take and arguments to make to obtain the lowest possible sentence.
An experienced Maryland federal child pornography lawyer understands that such charges are qualitatively different than charges of actual physical-contact sex offenses against minors. Part of what has driven the push for increased potential penalties for those accused of child pornography offenses is the concern that people convicted of child pornography offenses are more likely to commit sexual abuse against children.
However, there have not been any conclusive studies that demonstrate a causative link between viewing or possessing child pornography and physical-contact offenses against children. The push for increased sentences without empirical data to support it has led to child pornography offenses being punished as harshly, or, in many cases, more harshly than those who have actually committed contact offenses against children.
It’s important to understand that those convicted of child pornography offenses have low recidivism rates – lower than physical-contact offenders and significantly lower than the average recidivism rate – meaning it is unlikely that they will go on to commit additional offenses. One “meta-analysis” reviewing 21 studies and 4,464 online offenders found that just 2.1 percent were rearrested, recharged or reconvicted for a new contact sexual offense and 3.4 percent for a new child pornography offense.
Some federal judges, recognizing the validity of arguments made by aggressive advocates for people charged with child pornography offenses, are beginning to recognize the problems with the current sentencing structure and to hand down lower sentences. In 2008, U.S. District Judge Robert Pratt wrote that the sentencing guidelines for child pornography offenses “do not appear to be based on any sort of [science] 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 United States Sentencing Guidelines § 2G2.2 provides for several potential enhancements of the sentencing offense level in possession or receipt cases – provisions that could increase the sentence if followed by a judge. For example, if:
- The material involved a prepubescent minor or a minor who had not attained the age of 12 years, increase by 2 offense levels;
- The material involved a prepubescent minor or a minor who had not attained the age of 12 years, increase by 2 levels;
- The offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels;
- The defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels;
- The offense involved the use of a computer or an interactive computer service for possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material, increase by 2 levels;
Number of Images
The number of images alleged involved may potentially increase a sentence. If the offense involved:
- At least 10 images, but fewer than 150, increase by 2 levels;
- At least 150 images, but fewer than 300, increase by 3 levels;
- At least 300 images, but fewer than 600, increase by 4 levels;
- 600 or more images, increase by 5 levels.
Under the Guidelines, a video is treated as 75 images.
How can a Federal Child Pornography Lawyer Help During The Arrest Process?
When you’re arrested, one of the first things that you should know is that you have a right to remain silent and a Maryland federal child pornography lawyer can help you invoke that right. They can let agents know that you do not wish to be questioned by them until you have a lawyer present and even when a federal child pornography lawyer is present, he can represent to anybody who is investigating the case that you don’t wish to speak to them until you’ve had an opportunity to review the case, understand the charges against you, and then make an educated decision about how to handle the case. This involves whether to make a statement and—even more importantly, whether that means remaining silent until the government has demonstrated that they have enough information to prove the criminal charges that they are investigating you for.
Work With a Experienced Federal Child Pornography Lawyer
Because child pornography charges are unique and carry a particular public stigma, it’s important to work with a criminal defense attorney who is familiar with how to defend clients against such allegations. Selecting a Maryland federal child pornography lawyer who has successfully defended other clients facing similar charges is a good first step to take.
Facing federal prosecutors and investigative agencies can be daunting, which is why it helps to have an aggressive legal advocate working to protect your rights. It is incumbent upon the prosecution to demonstrate that certain actions or events took place “beyond a reasonable doubt.” Therefore, as a defendant, it is prudent to seek out an experienced federal criminal lawyer who is capable of establishing that reasonable doubt on your behalf.
Call our firm to speak with a Maryland federal child pornography lawyer who can work with you to establish a proactive defense strategy in response to your federal child pornography charges.