Federal Child Pornography Lawyer

Prosecutors will often threaten to charge someone with receipt instead of simple possession to try to force an early guilty plea.

The crimes of possession and receipt of child pornography are virtually indistinguishable. (The U.S. Sentencing Commission recently concluded as much.) After all, one cannot usually possess an image without first receiving it. The big difference is that receipt of child pornography carries a mandatory minimum sentence of 5 years in prison while simple possession carries no mandatory minimum sentence.

Prosecutors use this sentencing disparity in order to strong-arm defendants into early plea deals. In some federal districts, the U.S. Attorney’s Office will allow a defendant to enter a plea to simple possession if the plea is entered before the case is indicted. This practice has unfortunately led to many defendants being convicted without their cases being fully investigated for potential defenses. In other federal districts, receipt is routinely charged in order to increase the odds of a stiff prison sentence (at least 5 years).

Most child pornography investigations begin months or even years before law enforcement shows up a the door with a search warrant. In most cases, the investigation begins when law enforcement or a company like Yahoo, Google, DropBox, Kik, or others identify a user’s IP address as being associated with a download or upload of child pornography.

After an IP address is identified, the image or video is normally sent to NCMEC (the National Center for Missing and Exploited Children) which will investigate the image and determine if it matches a known child victim. NCMEC will then send the report to law enforcement for further investigation.

Law enforcement will then get a search warrant for the residence linked to the IP address and seize all of the computers, cell phones, hard drives, and other electronic equipment in the home. The police will usually also try to interview the residents of the home to obtain a confession or admission.

Most child pornography cases are the result of a peer-to-peer file sharing programs (also called P2P) like BitTorrent, Ares, Shareaza, or eMule. These programs allow users to easily share image and videos, including child pornography. Law enforcement has its own versions of these programs which allows it to see which IP addresses are sharing or downloading child pornography.

The vast majority of the pornography on these programs is legal adult pornography. The files, however, are not always accurately labeled. Images can also be bundled into larger files. This can cause a user to accidentally download child pornography, sparking an investigation and possible arrest. Even if the user attempts to delete the child porn, the image or video will likely remain in the computer’s unallocated space which law enforcement can find with special software.

To prove that the download was an accident, we have to look at the file and folder properties of the image. An independent computer forensics expert is often necessary to be able to explain how the image got onto the machine in the first place and to prove our client’s innocence.

The government will have its own expert (usually an analyst from the FBI or Homeland Security) prepare a forensic report detailing the images and videos found on a computer or hard drive. Without hiring an independent expert to review the electronic devices, a defendant has no way to effectively challenge the government’s report and expert.

Our computer forensics experts review the devices and help us build an ironclad defense. An independent expert can help us show that our client accidentally downloaded child pornography or that our client had no knowledge that a particular image or video was on the machine. Our experts do this by using specialized software, such as FTK or EnCase, to retrace the steps that led to the image or video being on the computer.

Our experts can also detail internet history, search terms that were used, dates and times accounts were accessed, whether viruses and malware were present, and whether a computer was remotely accessed. All of these factors can give rise defenses that can lead to a dismissal, acquittal, or reduction. We fortunately have access to the best-trained computer forensics experts in the country, and we have been able to prove many our clients’ innocence due to their expertise.

When a user visits a website, all of the photographs and videos are automatically downloaded to the computer’s hard drive.

The government has to be able to show that a defendant “knowingly” possessed an image or video of child pornography. In many cases, a defendant can argue that he did not knowingly possess an image or video because the file was accidentally downloaded or deleted.

• Accidental download. An individual may accidentally view or download child pornography while seeking out legal adult pornography (especially with P2P programs and general internet browsing). An independent expert can examine the file’s properties and obtain search terms that were used to show that the individual never intended to view or download the file.
• Cache and deleted files. When a user visits a website, all of the images are automatically downloaded as cache or temporary internet files without the user’s knowledge. Additionally, when a user deletes an image or video, the computer’s operating system automatically stores a thumbnail of the image as a thumbs.db file in unallocated space.  To prove possession of the cache file or deleted file in unallocated space, the government typically has to show that the individual was aware that the files still existed. An expert can help to show that an individual didn’t have such knowledge.
• Someone else downloaded the file. When more than one person has access to the computer, it is possible that someone else downloaded the images in question. An expert can help to determine the user account that was used, the date and time of the download, and other user activity to show that someone else could have been responsible for the downloads.
• No actual image or video. While the government may allege that a file was located on an electronic device, an independent expert can determine if this is in fact true. In one case, the government ended up dismissing charges against our client where our independent expert was able to show that there was no image on the device. Our expert pointed out that there were only “artifacts” of an image but no actual contraband.

Search warrants obtained in violation of the Fourth Amendment can taint the entire case. Most child pornography cases in federal court involve a search warrant which authorized the seizure of a defendant’s electronic devices. If the search warrant was unlawfully obtained, we can file a motion to suppress, arguing that the evidence was seized in violation of the Fourth Amendment to the U.S. Constitution. Many of these investigations begin with state or local police officers who are not as well trained as federal agents. This lack of training (or in some cases sloppiness) can cause force the government to dismiss the entire case if we file a motion to suppress.

If our client was interviewed by law enforcement and made incriminating statements, we can also file a motion to suppress these statements. Law enforcement will often fail to inform a person of his Miranda rights, thereby giving us the opportunity suppress the statements. In one recent case, the only evidence tying our client to child pornography found on a computer was his alleged confession which law enforcement had illegally obtained after raiding his home. When we argued that law enforcement had violated Miranda, the government dismissed the charges.

Our lawyers have helped many people show that they were innocent of child pornography charges, which allowed them to return to their normal lives.

In one case, our client was a young high school teacher. His life was turned upside down when law enforcement executed a search warrant at his home and seized his computers. Because of his profession, law enforcement did everything it could to arrest and convict him. Through our own computer forensics expert, we were able to show that our client had no sexual interest in children and that the downloads in question were unintentional. Our client was able to return home and continue his career.

Federal sentencing in child pornography can be severe. This is why it is so important to retain a defense lawyer who is steeped in computer forensics and who is going to fight for you. Even if you decide to enter a guilty plea instead of going to trial, you can often get a more favorable deal by initially fighting the government’s case.

We are often asked what a defendant can expect to be sentenced to if there is a conviction. While the sentencing laws provide for a wide range of possibilities (0 to 20 years for simple possession), federal judges use the Federal Sentencing Guidelines to arrive at a much narrower range and then fashion a particular sentence that they see fit. The Federal Sentencing Guidelines have been quite harsh to individuals convicted of child pornography offenses. In 2019, for instance, the average sentence recommended by the Guidelines for individuals accused of simple possession, receipt, or distribution was 136 months (or about 11 years) in prison. Judges, however, routinely sentence below the Guidelines’ recommendations. Indeed, the average sentence handed down by judges in 2019 was 103 months (about 8.5 years). This number is lower for possession cases and also varies by the individual federal district.

The Eastern District of Virginia charges child pornography offenses at a much higher rate than most federal districts. In 2021, there were 40 child pornography cases in the Eastern District of Virginia and the average sentence was 106 months (the median sentence was 74 months). Comparatively, in the Northern District of Georgia, there were only 20 child pornography cases and the average sentence was 89 months (with a median sentence of 60 months).

At sentencing, a computer forensics expert can be incredibly valuable to challenge the government’s arguments about the number of images, the nature of images, where the images were located, and the extent and duration of alleged conduct. We also utilize leading and respected clinical psychologists to have our clients undergo psychosexual evaluations. By doing so, these experts can testify that our clients are of no danger. Using independent experts at sentencing can mean the difference between the minimum sentence and a much more severe sentence.

Johnson/Citronberg has offices in Alexandria, Virginia and Atlanta, Georgia, and we represent clients across the country in federal court. In cases where we are retained early enough, we have successfully prevented clients from being charged in the first place. In other cases, we have won dismissals, obtained reductions to avoid harsh mandatory minimums, and achieved some of the lowest sentences possible. If you are looking for a compassionate, results-driven lawyer, give us a call at 855-959-4003.