Possession Of Child Pornography

Elements of the Offense

The elements for the possession of child pornography under § 2252(a)(4)(B) and § 2252A(a)(5)(B) can be understood most simply as the following:

1. The defendant knowingly possessed or accessed with the intent to view^[1] one or more^[2] [books, magazines, periodicals, films, videotapes, or other matter] which contained any visual depiction
2. The production of the visual depiction involved the use of a minor engaging in sexually explicit conduct^[3] / child pornography^[4]
3. The defendant knew that the material contained a minor engaged in sexually explicit conduct^[5] / child pornography^[6]
4. The visual depiction and/or the items used to produce the visual depiction had been mailed, shipped, or transported using any means or facility of interstate or foreign commerce, or had been shipped or transported in or affecting interstate or foreign commerce by any means including computer.

^[1] “Intent to view” included in Fourth, Fifth, and Sixth Circuits

^[2] “One or more” included in Fourth, Fifth, and Sixth Circuits

^[3] § 2252(a)(4)(B)

^[4] § 2252A(a)(5)(B)

^[5] § 2252(a)(4)(B)

^[6] § 2252A(a)(5)(B)

Possession

The traditional concepts of possession are widely accepted. “Possession” is defined as “[t]he fact of having or holding property in one’s power; the exercise of dominion over property.”^[7] Therefore, to establish possession the government must prove that the defendant exercised dominion and control over the contraband.^[8]

^[7] Black’s Law Dictionary 1183 (7th Ed. 1999)

^[8] United States v. Carrasco, 257 F.3d 1045 (9th Cir. 2001)

Knowledge

The circuits are in agreement that to act knowingly means to do an act voluntarily and intentionally, and not because of a mistake, accident, or another innocent reason.^[9]

“Knowingly” applies both to knowing possession of the visual depiction^[10] and to the knowledge of the fact that the content involves minors engaged in sexually explicit conduct / child pornography.^[11]

A number of factors could be considered when attempting to prove or disprove knowing possession.Whether or not the material was accessible to the defendant, or if the defendant exerted control over the material, could be used to determine their knowledge of the material. For example, computers automatically download images to the cache without the user’s knowledge in order to load material quicker in the future. If a user deletes their cache, it indicates that they are aware that their computer stores child pornography in this way. Similarly, if material is found in unallocated spaces that are typically only accessible to those with forensics skills, it is likely that the user had knowledge of this material. File structure, dates and times, the number of files, and proof of the user of the computer can all be used to indicate knowledge as well.

The government is not required to prove that the defendant knew the minor’s age. US v. X-Citement Video (1994) states that “§ 2251(a) reflects an intent that is not a necessary element of a prosecution that the defendant knew the actual age of the child.” Some circuits go beyond discarding knowledge of the victim’s age as an element of the offense and assert that it cannot be used as an affirmative defense.^[12]

The government is not required to prove that the defendant knew the visual depiction or materials were involved in interstate or foreign commerce.^[13] Rather, this element provides a jurisdictional basis for federal prosecution of the possession of child pornography.^[14] Visual content that is sent via the Internet from one state to another is sufficient for transportation in interstate or foreign commerce.^[15] Furthermore, the defendant need not have personally mailed/transported/sent the visual depiction/materials for the jurisdictional basis to be met.^[16]

The Fourth Circuit clarifies that acting knowingly does not require knowledge that the facts that constitute the offense are illegal, but simply acting with knowledge of the facts that constitute said offense.^[17]

^[9] United States v. Smith, 930 F.2d 1081 (5th Cir. 1991); United States v. Woerner, 709 F.3d 527 (5th Cir. 2013); United States v. Moreland, 665 F.3d 137 (5th Cir. 2011); United States v. Romm, 455 F.3d 990 (9th Cir. 2006); United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009)

^[10] United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008); United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995); United States v. Moreland, 665 F.3d 137 (5th Cir. 2011); United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994); United States v. Cedelle, 89 F.3d 181 (4th Cir. 1996)

^[11] United States v. Humphrey, 608 F.3d 955 (6th Cir. 2010); United States v. Deverso, 518 F.3d 1250 (11th Cir. 2008)

^[12] United States v. Feola, 420 U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975); United States v. Robinson, 137 F.3d 652 (1st Cir. 1998); United States v. Morales-de Jesus, 372 F.3d 6 (1st Cir. 2004); United States v. Lively, 852 F.3d 549 (6th Cir. 2017); United States v. Smith, 459 F.3d 1276 (11th Cir. 2006)

^[13] §2251(a); United States v. Bausch, 140 F.3d 739 (8th Cir. 1998); United States v. Bailey, 772 F. App’x 132 (5th Cir. 2019); United States v. McCall, 833 F.3d 560 (5th Cir. 2016); United States v. Diehl, 775 F.3d 714 (5th Cir. 2015); United States v. McGee, 821 F.3d 644 (5th Cir. 2016); United States v. Runyan, 290 F.3d 223 (5th Cir. 2002); United States v. Betcher, 534 F.3d 820 (8th Cir. 2008); United States v. Fadl, 498 F.3d 862 (8th Cir. 2007). Note that the interstate commerce requirement is also satisfied if the maker of the visual depiction has reason to know that the depiction will be transported in interstate commerce. This is the only jurisdictional hook that requires the government to prove knowledge (United States v. Diehl, 775 F.3d 714 (5th Cir. 2015); United States v. Sheldon, 755 F.3d 1047 (9th Cir. 2014)

^[14] 18 U.S.C. § 2251(b); United States v. Crain, 877 F.3d 637 (5th Cir. 2017)

^[15] United States v. Tidwell, 917 F.2d 1305 (6th Cir. 1990) (unpublished);United States v. Bowers, 594 F.3d 522 (6th Cir. 2010); Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005)

^[16] United States v. Dornhofer, 859 F.2d 1195 (4th Cir. 1988); United States v. Matthews, 209 F.3d 338 (4th Cir. 2000)

^[17] United States v. Dornhofer, 859 F.2d 1195 (4th Cir. 1988); United States v. Matthews, 209 F.3d 338 (4th Cir. 2000)

Cache

There is some gray area regarding whether images stored on a computer’s cache qualify as possession, so such instances are usually determined on a case-by-case basis based on whether the defendant knew of the cache’s existence or how computers store information. The Eighth and Tenth Circuits clarify that the presence of child pornography images in a computer’s temporary cache file, absent other evidence, is not sufficient to establish the defendant’s knowing possession of the images. Therefore, one cannot be guilty of possession for simply having viewed an image on a website without purposefully saving or downloading the image.^[18] Similarly, The Ninth Circuit ruled that a defendant who was not a sophisticated computer user, did not try to access cache files, and did not know of the existence of cache files did not knowingly possess the material.^[19]

On the other hand, a defendant who accessed images in his cache was sufficient to find that he possessed them.^[20] The Tenth Circuit similarly moved to convict when the evidence supported the finding that the defendant continued to view child pornography whilst aware that the images were automatically stored in cache files under his control.^[21]

^[18] United States v. Stulock, 308 F.3d 922 (8th Cir. 2002); United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011)

^[19] United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006)

^[20] United States v. Romm, 455 F.3d 990, 998 (9th Cir. 2006)

^[21] United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002)

Sexually Explicit Conduct

See the Common Terms section here.

Child Pornography

See the Common Terms section here.

Interstate / Foreign Commerce

Under the Commerce Clause, the Federal Government has jurisdiction over § 2252(a)(4)(B) and § 2252A(a)(5)(B) cases if the visual depictions or materials used to produce them were involved in commerce between states or with foreign countries.

18 U.S.C. § 10 maintains that “interstate commerce” includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. The term “foreign commerce” includes commerce with a foreign country.

18 U.S.C. § 10 and many of the circuits include materials and visual depictions transmitted over the Internet or over telephone lines in their understanding of interstate or foreign commerce.^[22] The Fifth Circuit clarifies that when the government uses downloading images from the Internet as the jurisdictional nexus, the evidence must independently link all of the images involved in the conviction to the Internet.^[23]

There is slight disagreement on whether the visual depictions actually need to be sent from one place to another for the jurisdictional hook to be triggered. The Fourth Circuit clarifies that the government does not have to prove that the visual depictions were transported in interstate commerce. For example, it is sufficient if they were simply mailed.^[24] Similarly, the Sixth Circuit includes visual depictions or materials that would cross state lines in its understanding of interstate commerce.^[25] However, the Fifth Circuit only mentions that the jurisdictional hook is sufficiently met if images or videos are actually sent (via the Internet) from one state to another, and has not explicitly addressed whether material actually needs to be transported or not.^[26]

The government is not required to prove that the defendant knew the visual depiction or materials were involved in interstate or foreign commerce.^[27]

^[22] 18 U.S.C. § 10; United States v. Hilton, 257 F.3d 50 (1st Cir. 2001); United States v. Carroll, 105 F.3d 740 (1st Cir. 1997); United States v. Runyan, 290 F.3d 223 (5th Cir. 2002); United States v. Winkler, 639 F.3d 692 (5th Cir. 2011); United States v. Fuller, 77 F. App’x 371 (6th Cir. 2003) (Unpublished)

^[23] United States v. Runyan, 290 F.3d 223 (5th Cir. 2002)

^[24] United States v. Goodwin, 854 F.2d 33 (4th Cir. 1988)

^[25] Citation needed (Jury Instructions)

^[26] United States v. Crain, 877 F.3d 637 (5th Cir. 2017)

^[27] United States v. Feola, 420 U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975); United States v. Robinson, 137 F.3d 652 (1st Cir. 1998); United States v. Morales-de Jesus, 372 F.3d 6 (1st Cir. 2004); United States v. Lively, 852 F.3d 549 (6th Cir. 2017)

Access with Intent to View

There is little existing case law on the specifications required by the language of “accessing with intent to view,” the Fourth Circuit ruled that the term “accessing” is not vague, but is “sufficiently clear to apprise men of ordinary intelligence of the statute’s prohibition.”^[28] In this case, the defendant’s multiple visits to websites containing child pornography in addition to the number of images viewed during those visits satisfied the definition of “access.”

^[28] United States v. Wiggins, 617 F. App’x 266, 268 (4th Cir. 2015)

Amount of Obscene Material & Affirmative Defenses

A former version of the statute required possession of three or more “matters” depicting a minor engaged in sexually explicit conduct. However, it was amended in the 1998 Protection of Children from Sexual Predators Act to prohibit possession of one sexually explicit depiction of a minor.

At the same time, the statute was amended to include an affirmative defense if the defendant:

1. Possessed fewer than three images of child pornography; and
2. Promptly and in good faith, and without retaining or allowing any person other than law enforcement, to access any visual depiction or copy thereof

• Took reasonable steps to destroy each such visual depiction; or
• Reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction

Inchoate Offenses: Possession

18 U.S.C. § 2252(b)(2): “Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title and imprisoned…” (see sentencing guidelines)

18 U.S.C. § 2252A(2): “Whoever violates, or attempts or conspires to violate, subsection (a)(5) shall be fined under this title or imprisoned…” (see sentencing guidelines)

Substantial Step
In general, attempt requires the specific intent to commit a crime and a substantial step toward the commission of that crime.^[29] When Congress uses a legal term such as “attempt,” the courts generally apply that accepted definition. Therefore, the attempt to possess child pornography requires a defendant to have the specific intent to possess a sexually explicit visual depiction of a minor and must take a substantial step towards completing the offense.^[30]

A substantial step is “more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime.”^[31] The line between preparation and attempt is not always clear, requiring such determinations to be fact-specific.^[32] It is not necessary for a substantial step to be the “last act” necessary before the completion of the crime, but rather must “strongly corroborate” a defendant’s intent to commit the offense.^[33] Mere intent is not punishable as an attempt “unless it is also accompanied by significant conduct.”^[34]

Abandoning an attempt to possess child pornography does not provide a defense

^[29] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993); United States v. Washington, 106 F.3d 983, 1004 (D.C. Cir. 1997); United States v. Munro, 394 F.3d 865, 869 (10th Cir. 2005)

^[30] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. Bernhardt, 903 F.3d 818, 826 (8th Cir. 2018); United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007)

^[31] United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985); United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)

^[32] United States v. Coplon, 185 F.2d 629, 632 (2d Cir. 1950); United States v. Gaines, 969 F.2d 692, 697 (8th Cir. 1992)

^[33] United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987); United States v. DeMarce, 564 F.3d 989, 998 (8th Cir. 2009)

^[34] United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007)

Double Jeopardy

The Eleventh Circuit found that convictions for attempting to receive child pornography and the lesser-included offense of attempting to possess child pornography violated the Double Jeopardy Clause because both charges involved the same conduct from the same day.^[35]

^[35] United States v. Phillips, 4 F.4th 1171, 1178 (11th Cir. 2021)

^[35] United States v. Phillips, 431 F.3d 86 (2d Cir. 2005)

Sentencing

Mandatory Minimums & Maximums
18 U.S.C. Section 2252(b)(1) and 2252A(b)(1): “Whoever violates, or attempts or conspires to violate, subsection (a)(5) [possession of child pornography] shall be fined under this title and imprisoned….”

• Minimum: None
• Maximum: 10 years

Prior conviction for a sex offense under [§ 2252/2252A, § 1591, Chapter 71, Chapter 109A, or Chapter 117, or under § 920 of Title 10, or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography]:

• Minimum: 10 years
• Maximum: 20 years

If any visual depiction involved in the offense involved a prepubescent minor or a minor under 12 years old:

• Minimum: None
• Maximum: 20 years

If they also had a prior sex offense conviction:

• Minimum: 10 years
• Maximum: 20 years

Prior Convictions
In determining whether a prior offense under a state statute qualifies as a predicate offense for the purpose of sentence enhancement, circuits apply a categorical approach, considering the fact of conviction, the statutory definition of the prior offense, and determining whether the full range of conduct encompassed by the state statue is sufficient to enhance the sentence.^[36]

It is not necessary for a defendant’s prior sexual abuse conviction to involve a minor to qualify as a predicate offense to consider when determining the mandatory minimum sentence.^[37]

For child pornography statutes, a state crime triggers a sentence enhancement if it “relat[es] to” the relevant conduct (aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward).^[38] “Involving a minor” modifies only “abusive sexual conduct.”^[39] “Abusive sexual conduct involving a minor or ward” is generally agreed to mean “improper, perverted, or damaging behavior associated with libidinal gratification concerning a minor or ward.”^[40]

The Third, Seventh, Eighth, and Tenth Circuits ruled that the enhancement statute does not limit “child pornography” or “sexually abusive conduct” to their federal definitions, so absolute congruence of state and federal offenses is not required, and conduct related to state statutes can be related to federal offenses even if they are not actually criminalized by the federal statute.^[41] However, the Ninth Circuit disagreed, determining that if a state offense criminalizes more conduct than the federal offense, it is overbroad, and thus conviction under the state’s statute does not “relate to” the offense and trigger the enhanced mandatory minimum sentence.^[42]

Prior convictions that have qualified for sentence enhancements include sexual assault,^[43] gross sexual imposition,^[44] promotion of sexual performance of a child,^[45] and adjudications for aggravated sexual assault and indecency with a child.^[46] Prior convictions determined not to qualify for sentence enhancements include a juvenile delinquency adjudication for a criminal sexual offense involving a minor^[47] and attempted pandering of obscenity involving a minor.^[48]

^[36] United States v. Sonnenberg, 556 F.3d 667 (8th Cir. 2009); Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990); United States v. Medina-Valencia, 538 F.3d 831, 833 (8th Cir. 2008); United States v. Lockwood, 446 F.3d 825 (8th Cir. 2006)

^[37] Lockhart v. United States, 577 U.S. 347, 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016); United States v. Mateen, 764 F.3d 627 (6th Cir. 2014)

^[38] Section 2252(b)(1); United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015)

^[39] Lockhart v. United States, 577 U.S. 347, 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016)

^[40] Webster’s Third New International Dictionary 8 (1981); Black’s Law Dictionary 13 (10th ed. 2009); United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015); United States v. Barker, 723 F.3d 315, 317 (2d Cir. 2013); United States v. Sonnenberg, 556 F.3d 667, 670 (8th Cir. 2009)

^[41] United States v. Bennett, 823 F.3d 1316 (10th Cir. 2016); United States v. Portanova, 961 F.3d 252 (3d Cir. 2020); United States v. Kraemer, 933 F.3d 675 (7th Cir. 2019); United States v. Box, 960 F.3d 1025 (8th Cir. 2020)

^[42] United States v. Reinhart, 893 F.3d 606 (9th Cir. 2018)

^[43] United States v. Ary, 892 F.3d 787 (5th Cir. 2018); United States v. Sumner, 816 F.3d 1040 (8th Cir. 2016)

^[44] United States v. Mateen, 806 F.3d 857 (6th Cir. 2015)

^[45] United States v. Kushmaul, 984 F.3d 1359 (11th Cir. 2021)

^[46] United States v. Ary, 892 F.3d 787 (5th Cir. 2018)

^[47] United States v. Gauld, 865 F.3d 1030 (8th Cir. 2017)

^[48] United States v. Davis, 751 F.3d 769 (6th Cir. 2014)