RECEIPT OF CHILD PORNOGRAPHY

ELEMENTS OF THE OFFENSE

The elements for the receipt of child pornography under § 2252(a)(2) and § 2252A(a)(2) can be understood most simply as the following:

1. The defendant knowingly received a visual depiction^[1] 
2. The production of the visual depiction involved the use of a minor engaging in sexually explicit conduct and the depiction is of such conduct/child pornography
3. The depiction was mailed or shipped or transported in interstate or foreign commerce, including by Internet^[2]
4. The defendant acted knowingly.

RECEIPT

“Receipt,” while lacking a statutory definition, is accepted to mean knowingly accepting or taking possession of something. Receipt does not require proof of ownership.[3]

Each separate instance of receipt of a visual depiction constitutes a separate offense under the statute.[4] An indictment only violates the Double Jeopardy Clause if it “charges a single offense in separate counts.”[5]

To prove constructive receipt found in a shared location, the government must prove the defendant knew of the visual depiction. The mere joint occupancy of the location is not sufficient.[6]

For the charge of receipt, intent to distribute is not a required element.[7] Prior to the 1984 amendment to the Protection of Children Against Sexual Exploitation Act, to be convicted of a receipt offense required an intent to sell or distribute the visual depictions for sale. This qualification was overlooked by some circuits while in effect, and now no longer applies.[8]

Some circuits maintain that the possession of child pornography is a lesser-included offense of receiving child pornography. It is considered double jeopardy to be charged for possessing and receiving the same image.[9]

The Second Circuit left this question open.[10] When a defendant is charged with two distinct offenses, such as on different dates or involving different visual depictions, conviction under both sections of the statute is permissible.[11]

The Tenth Circuit held that a defendant who mailed child pornography to themself from out of the country “received” the material. The defendant surrendered control in giving the material to the postal service and thus was able to later receive them.[12]

SEXUALLY EXPLICIT CONDUCT

See the Common Terms section here.

CHILD PORNOGRAPHY

See the Common Terms section here.

KNOWINGLY

A person “knowingly receives” child pornography when they intentionally view, acquire, or accept child pornography (including on a computer) from an outside source.[21] The government must prove not only that the defendant knowingly received a visual depiction, but also that they knew the visual depiction portrayed a minor and that the minor was engaged in sexually explicit conduct.[22] Some circuits have expanded knowledge of the depicted person’s age to include a “reckless disregard of the obvious,” regardless of whether the defendant actually knew that the person was in fact under 18.[23]

The defendant must objectively manifest a belief that the material is child pornography. A belief without an accompanying statement or action that would lead a reasonable person to understand that the defendant holds the belief is insufficient.[24]

For a defendant to knowingly receive child pornography, they must have known that the visual depiction they were receiving was in fact child pornography.[25] Such knowledge is established if the defendant was aware that their receipt of child pornography was practically certain to follow from their conduct.[26] Knowing receipt can also be proven by circumstantial evidence.[27]

To “knowingly” receive something is to do so voluntarily and intentionally and not because of mistake or accident.[28] Proving knowing receipt on the Internet can be difficult because of the way computers store data without the users’ knowledge. Circuits have both reversed convictions for knowing receipt due to a lack of knowledge of computer caches’ contents as well as upheld convictions where the evidence indicated intent or stronger evidence of knowledge.[29] Ultimately, the court must rule on whether the evidence points to “knowing receipt” based on the extent of the defendant’s knowledge in the particular case.[30]

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.[31] 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.[32]

In some cases, the “mailing” element of the statute can be satisfied even when the defendant received a visual depiction through a controlled delivery by undercover agents.[33]

Using the Internet to transmit child pornography satisfies the “interstate commerce” element regardless of whether the other party lives in another state.[34]

TECHNICALITIES

A multiplicity issue will likely arise if someone is charged under both 2252(a) and 2252A for the same incident.[35] Ashcroft v. Free Speech Coalition (2002) rendered these statutes “functionally identical.”[36]

Receipt of child pornography does not sexually exploit a minor in violation of 18 U.S.C. 2251, even if the materials involve sexual exploitation on behalf of the producer.[37]

INCHOATE OFFENSES: RECEIPT

Statute

18 U.S.C. § 2252(b)(1): “Whoever violates, or attempts or conspires to violate, paragraph (1), (2), or (3) of subsection (a) shall be fined under this title and imprisoned…” (see sentencing guidelines)

18 U.S.C. § 2252A(b)(1): “Whoever violates, or attempts or conspires to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this title and 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.^[38] When Congress uses a legal term such as “attempt,” the courts generally apply that accepted definition. Therefore, the attempt to receive child pornography requires a defendant to have the specific intent to receive a sexually explicit visual depiction of a minor and must take a substantial step towards completing the offense.^[39]

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.”^[40] The line between preparation and attempt is not always clear, requiring such determinations to be fact-specific.^[41] 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.^[42] Mere intent is not punishable as an attempt “unless it is also accompanied by significant conduct.”^[43]

The Tenth and Eleventh Circuits maintain that in order to be convicted of an attempt, a defendant must have intended to carry out the proscribed conduct – in this case, the knowing receipt of child pornography.^[44]

The Eighth Circuit held that sending money to an alleged minor for her to purchase a camera to record and send sexually explicit images of herself qualified as a substantial step rather than mere preparation toward the receipt of child pornography.^[45]

The Tenth Circuit found that the government offered insufficient evidence to prove that a defendant took a substantial step toward receiving child pornography because there were no child-pornography-related searches immediately preceding the creation of the images in the defendant’s cache.^[46]

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.[47]

KNOWLEDGE

The government does not have to prove that the defendant knew that the downloaded file actually contained child pornography, only that they believed the file contained such images.[48] The government does not need to prove that the downloaded files actually contained child pornography.

Furthermore, the government does not have to prove that the minor actually existed, only that the defendant sought to receive depictions they believed to be of a minor.[49]

SENTENCING

Mandatory Minimums & Maximums

18 U.S.C. Section 2252(b)(1) and 2252(b)(1): “Whoever violates, or attempts or conspires to violate, [receipt of child pornography] shall be fined under this title and imprisoned….”

• Minimum: 5 years
• Maximum: 20 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: 15 years
• Maximum: 40 years

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

• Maximum 20 years

If they also had a prior sex offense conviction:

• Minimum: 10 years
• Maximum: 20 years

PRIOR CONVICTION

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.[50]

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.[51]

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).[52] “Involving a minor” modifies only “abusive sexual conduct.”[53] “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.”[54]

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.[55] 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 statue does not “relate to” the offense and trigger the enhanced mandatory minimum sentence.[56]

Prior convictions that have qualified for sentence enhancements include sexual assault,[57] gross sexual imposition,[58] and adjudications for aggravated sexual assault and indecency with a child.[59] Prior convictions determined not to qualify for sentence enhancements include a juvenile delinquency adjudication for a criminal sexual offense involving a minor[60] and attempted pandering of obscenity involving a minor.[61]

CITATIONS

^[1] While the statute says “any,” all circuits have adopted “a,” which includes a single instance (United States v. Moore, 916 F.2d 1131 (6th Cir. 1990))

² United States v. Runyan, 290 F.3d 223 (5th Cir. 2002); United States v. Winkler, 639 F.3d 692 (5th Cir. 2011)

³ Fifth Circuit Jury Instructions, Eleventh Circuit Jury Instructions

⁴ United States v. Planck, 493 F.3d 501 (5th Cir. 2007)

⁵ United States v. Woerner, 709 F.3d 527 (5th Cir. 2013)

⁶ United States v. Calhoun, 691 F. App’x 230 (5th Cir. 2017)

⁷ United States v. Olander, 572 F.3d 764 (9th Cir. 2009); United States v. Watzman, 486 F.3d 1004 (7th Cir. 2007)

⁸ United States v. Bevacqua, 864 F.2d 19 (3d Cir. 1988); United States v. Miller, 776 F.2d 978 (11th Cir. 1985); United States v. Sturm, 673 F.3d 1274 (10th Cir. 2012); United States v. Olander, 572 F.3d 764 (9th Cir. 2009

⁹ United States v. Ehle, 640 F.3d 689 (6th Cir. 2011); Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996); United States v. Bobb, 577 F.3d 1366 (11th Cir. 2009); United States v. Miller, 527 F.3d 54 (3d Cir. 2008); United States v. Davenport, 519 F.3d 940 (9th Cir. 2008); United States v. Harvey, 890 F.3d 1130 (8th Cir. 2018)

¹⁰United States v. Irving, 554 F.3d 64 (2d Cir. 2009)

¹¹ United States v. Bobb, 577 F.3d 1366 (11th Cir. 2009)

¹² United States v. Stanley, 896 F.2d 450 (10th Cir. 1990)

¹³US v. Williams (11th Cir. 2006); US v. Brown (6th Cir. 2009); United States v. Daniels, 653 F.3d 399 (6th Cir. 2011); United States v. Steen, 634 F.3d 822 (5th Cir. 2011); United States v. McCall, 833 F.3d 560 (5th Cir. 2016)

¹⁴ United States v. Frabizio, 459 F.3d 80 (1st Cir. 2006); United States v. Amirault, 173 F.3d 28 (1st Cir. 1999); United States v. Smith, 459 F.3d 1276 (11th Cir. 2006)

¹⁵ United States v. Hillie, 14 F.4th 677, 691 (D.C. Cir. 2021), reh’g granted, 37 F.4th 680 (D.C. Cir. 2022), and on reh’g, 39 F.4th 674 (D.C. Cir. 2022)

¹⁶ United States v. Courtrade, 929 F.3d 186, 191-2 (4th Cir. 2019)

^[17] The inclusion of “morphed” computer-generated sexually explicit images that involve an actual minor is only included in the definition of § 2252A, whereas § 2252 is limited to unaltered images of actual minors.

^[18] United States v. Hoey, 508 F.3d 687 (1st Cir. 2007); United States v. Bach, 400 F.3d 622 (8th Cir. 2005)

^[19] United States v. McNealy, 625 F.3d 858 (5th Cir. 2010); United States v. Slanina, 359 F.3d 356 (5th Cir. 2004); United States v. Salcido, 506 F.3d 729 (9th Cir. 2007)

^[20] United States v. Farrelly, 389 F.3d 649 (6th Cir. 2004); United States v. Williams, 411 F.3d 675 (6th Cir. 2005); United States v. McNealy, 625 F.3d 858 (5th Cir. 2010)

^[21] United States v. Pruitt, 638 F.3d 763 (11th Cir. 2011)

^[22] United States v. Cedelle, 89 F.3d 181 (4th Cir. 1996); United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995); United States v. Stout, 509 F.3d 796 (6th Cir. 2007); United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994); United States v. Acheson, 195 F.3d 645 (11th Cir. 1999), disapproved of by Ashcroft v. Free Speech Coal., 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002); United States v. Arce, 49 F.4th 382 (4th Cir. 2022); United States v. Duncan, 896 F.2d 271 (7th Cir. 1990); United States v. Brown, 862 F.2d 1033 (3d Cir. 1988)

^[23] United States v. Gifford, 17 F.3d 462, 472 (1st Cir. 1994); United States v. Burian, 19 F.3d 188 (5th Cir. 1994)

^[24] United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008)

^[25] United States v. Szymanski, 631 F.3d 794 (6th Cir. 2011)

^[26] United States v. Ogden, 685 F.3d 600 (6th Cir. 2012)

^[27] United States v. Hentzen, 638 F. App’x 427 (6th Cir. 2015) (unpublished)

^[28] United States v. Clark, 741 F.2d 699 (5th Cir. 1984)

^[29] United States v. Dobbs, 629 F.3d 1199, 1201 (10th Cir. 2011); United States v. Bass, 411 F.3d 1198 (10th Cir. 2005); United States v. Tucker, 305 F.3d 1193, 1204 (10th Cir. 2002); United States v. Pruitt, 638 F.3d 763 (11th Cir. 2011); United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006); United States v. Ramos, 685 F.3d 120 (2d Cir. 2012)

^[30] United States v. Winkler, 639 F.3d 692, 699 (5th Cir. 2011)

^[31] 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)

^[32] United States v. Runyan, 290 F.3d 223 (5th Cir. 2002)

^[33] United States v. Moore, 916 F.2d 1131 (6th Cir. 1990)

^[34] United States v. Smith, 47 M.J. 588 (N-M. Ct. Crim. App. 1997)

^[35] United States v. Reedy, 304 F.3d 358 (5th Cir. 2002)

^[36] Ashcroft v. Free Speech Coal., 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002)

^[37] United States v. Kemmish, 120 F.3d 937 (9th Cir. 1997)

^[38] 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)

^[39] United States v. Bernhardt, 903 F.3d 818, 826 (8th Cir. 2018)

^[40] United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985); United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)

^[41] United States v. Coplon, 185 F.2d 629, 632 (2d Cir. 1950); United States v. Gaines, 969 F.2d 692, 697 (8th Cir. 1992)

^[42] United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987); United States v. DeMarce, 564 F.3d 989, 998 (8th Cir. 2009)

^[43] United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007)

^[44] United States v. Dobbs, 629 F.3d 1199, 1208 (10th Cir. 2011); United States v. Carothers, 121 F.3d 659, 661 (11th Cir. 1997)

^[45] United States v. Bauer, 626 F.3d 1004, 1008 (8th Cir. 2010)

^[46] United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011)

^[47] United States v. Phillips, 4 F.4th 1171, 1178 (11th Cir. 2021)

^[48] 18 U.S.C. 2252(a)(2); United States v. Nance, 767 F.3d 1037, 1044 (10th Cir. 2014); United States v. Pires, 642 F.3d 1, 7 (1st Cir. 2011)

^[49] United States v. Bauer, 626 F.3d 1004, 1007 (8th Cir. 2010)

^[50] 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)

^[51] Lockhart v. United States, 577 U.S. 347, 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016)

^[52] Section 2252(b)(1); United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015)

^[53] Lockhart v. United States, 577 U.S. 347, 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016)

^[54] 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)

^[55] 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)

^[56] United States v. Reinhart, 893 F.3d 606 (9th Cir. 2018)

^[57] United States v. Ary, 892 F.3d 787 (5th Cir. 2018); United States v. Sumner, 816 F.3d 1040 (8th Cir. 2016)

^[58] United States v. Mateen, 806 F.3d 857 (6th Cir. 2015)

^[59] United States v. Ary, 892 F.3d 787 (5th Cir. 2018)

^[60] United States v. Gauld, 865 F.3d 1030 (8th Cir. 2017)

^[61] United States v. Davis, 751 F.3d 769 (6th Cir. 2014)