DISTRIBUTION OF CHILD PORNOGRAPHY

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ELEMENTS OF THE OFFENSE

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

1. The defendant knowingly distributed 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.

^[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)

DISTRIBUTION

“Distribution” is defined as delivering or transferring possession of something to someone else. Distribution does not require a financial interest in the transaction.^[3] Sending child pornography over the Internet to oneself does not constitute distribution.^[4]

In some circuits, the charge of possession is not a lesser-included offense of distribution of child pornography, as each crime requires proof of a fact that the other does not.^[5] Conviction of both does not violate the Double Jeopardy Clause.

Each separate instance of distribution of a visual depiction constitutes a separate offense under the statute. An indictment only violates the Double Jeopardy Clause if it “charges a single offense in separate counts.”^[6]

The government must prove that when distributing a visual depiction, the defendant intended that the receiver believe the content to be child pornography.^[7]

^[3] Fifth Circuit Jury Instructions, Eleventh Circuit Jury Instructions; United States v. Arvin, 900 F.2d 1385 (9th Cir. 1990)

^[4] United States v. Grzybowicz, 747 F.3d 1296 (11th Cir. 2014)

^[5] United States v. Woerner, 709 F.3d 527 (5th Cir. 2013); United States v. McElmurry, 776 F.3d 1061 (9th Cir. 2015); United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012)

^[6] United States v. Woerner, 709 F.3d 527 (5th Cir. 2013); United States v. Planck, 493 F.3d 501 (5th Cir. 2007); United States v. Gallardo, 915 F.2d 149 (5th Cir. 1990)

^[7] United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008)

SEXUALLY EXPLICIT CONDUCT

See the Common Terms section here.

CHILD PORNOGRAPHY

See the Common Terms section here.

KNOWINGLY

The government must prove not only that the defendant knowingly distributed a visual depiction, but also that they knew both that the visual depiction portrayed a minor and that the minor was engaged in sexually explicit conduct.^[12] 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.^[13]

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.^[14]

In some circuits, storing visual depictions of child pornography in a shared folder available to other users on a peer-to-peer network may amount to “knowing distribution,” even if there is no proof that someone else accessed the files.^[15] A defendant has no expectation of privacy for files shared on such a network.^[16] In such a case, the government must prove that the defendant knew that the shared folder was accessible to others.^[17] However, in other circuits, placing child pornography in a shared folder available to others in a file-sharing network does not constitute “distribution” where there was no evidence that anyone accessed, viewed, or downloaded the material.^[18]

The Tenth Circuit clarifies that “knowing distribution” does not require proof that the defendant had the intent to distribute child pornography nor that they caused it to be distributed.^[19] Knowledge that a peer-to-peer file-sharing program made child pornography accessible to others is sufficient.^[20]

Knowing distribution can also be proven by circumstantial evidence.^[21]

^[12] United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994)

^[13] United States v. Gifford, 17 F.3d 462, 472 (1st Cir. 1994); United States v. Burian, 19 F.3d 188 (5th Cir. 1994)

^[14] United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008)

^[15] United States v. Richardson, 713 F.3d 232 (5th Cir. 2013); United States v. Clark, 24 F.4th 565 (6th Cir. 2022); United States v. Moran, 771 F. App’x 594 (6th Cir. 2019); United States v. Conner, 521 F. App’x 493 (6th Cir. 2013); United States v. Stitz, 877 F.3d 533 (4th Cir. 2017); United States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007); United States v. Christy, 65 M.J. 657 (A. Ct. Crim. App. 2007); United States v. Ryan, 885 F.3d 449 (7th Cir. 2018)

^[16] United States v. Weast, 811 F.3d 743 (5th Cir. 2016)

^[17] United States v. Sosa-Pintor, 741 F. App’x 207 (5th Cir. 2018); United States v. Roetcisoender, 792 F.3d 547 (5th Cir. 2015); United States v. Baldwin, 743 F.3d 357 (2d Cir. 2014)

^[18] United States v. Husmann, 765 F.3d 169 (3d Cir. 2014)

^[19] United States v. Shaffer, 472 F.3d 1219, 1226 (10th Cir. 2007)

^[20] United States v. Cates, 897 F.3d 349 (1st Cir. 2018)

^[21] United States v. Davis, 859 F.3d 429 (7th Cir. 2017)

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]

Most circuits have agreed that it is sufficient that the distribution of child pornography occurred using a means of interstate commerce. It does not actually have to cross state lines.^[24] Using the Internet to transmit child pornography satisfies the “interstate commerce” element regardless of whether the receiving party lives in another state.^[25]

^[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. Clark, 24 F.4th 565 (6th Cir. 2022)

^[25] United States v. Smith, 47 M.J. 588 (N-M. Ct. Crim. App. 1997); United States v. Clark, 24 F.4th 565 (6th Cir. 2022)

TECHNICALITIES

A multiplicity issue will likely arise if someone is charged under both 2252(a) and 2252A for the same incident.^[26] Ashcroft v. Free Speech Coalition (2002) rendered these statutes “functionally identical.”^[27]

Distribution 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.^[28]

Attempts and conspiracies to distribute child pornography are also criminalized by § 2252(a)(2) and § 2252A(a)(2).^[29]

^[26] United States v. Reedy, 304 F.3d 358 (5th Cir. 2002)

^[27] Ashcroft v. Free Speech Coal., 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002)

^[28] United States v. Kemmish, 120 F.3d 937 (9th Cir. 1997)

^[29] United States v. Studabaker, 578 F.3d 423 (6th Cir. 2009)

INCHOATE OFFENSES: DISTRIBUTION

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.^[30] When Congress uses a legal term such as “attempt,” the courts generally apply that accepted definition. Therefore, the attempt to distribute child pornography requires a defendant to have the specific intent to distribute a sexually explicit visual depiction of a minor and must take a substantial step towards completing the offense.^[31]

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.”^[32] The line between preparation and attempt is not always clear, requiring such determinations to be fact-specific.^[33] 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.^[34] Mere intent is not punishable as an attempt “unless it is also accompanied by significant conduct.”^[35]

Double Jeopardy

Conspiracy to distribute child pornography is a lesser-included offense of that of engaging in child exploitation enterprise. Imposition of concurrent sentences for both counts violates the Double Jeopardy Clause.^[36]

Internet File-Sharing

In the Eighth Circuit, evidence that the defendant had a file-sharing website on his computer, knew how to use it, stored child pornography on his devices that other file-sharing website users could have downloaded, and provided other users with the password was sufficient for a conviction of attempted distribution of child pornography.^[37] The Fourth Circuit came to the same conclusion in a similar case.^[38]

^[30] 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)

^[31] United States v. Bernhardt, 903 F.3d 818, 826 (8th Cir. 2018)

^[32] United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985); United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)

^[33] United States v. Coplon, 185 F.2d 629, 632 (2d Cir. 1950); United States v. Gaines, 969 F.2d 692, 697 (8th Cir. 1992)

^[34] United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987); United States v. DeMarce, 564 F.3d 989, 998 (8th Cir. 2009)

^[35] United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007)

^[36] United States v. Gries, 877 F.3d 255, 258 (7th Cir. 2017)

^[37] United States v. Keck, 2 F.4th 1085 (8th Cir. 2021)

^[38] United States v. Hayes, 612 F. App’x 673 (4th Cir. 2015) (unpublished)

SENTENCING

Mandatory Minimums & Maximums

18 U.S.C. Section 2252(b)(1) and 2252A(b)(1): “Whoever violates, or attempts or conspires to violate, [distribution 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

Section 2252A Only:

Distribution of “morphed” image:

• Minimum: None
• Maximum: 15 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.^[39]

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.^[40]

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).^[41] “Involving a minor” modifies only “abusive sexual conduct.”^[42] “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.”^[43]

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.^[44] 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.^[45]

Prior convictions that have qualified for sentence enhancements include sexual assault,^[46] gross sexual imposition,^[47] and adjudications for aggravated sexual assault and indecency with a child.^[48] Prior convictions determined not to qualify for sentence enhancements include a juvenile delinquency adjudication for a criminal sexual offense involving a minor^[49] and attempted pandering of obscenity involving a minor.^[50]

^[39] 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)

^[40] Lockhart v. United States, 577 U.S. 347, 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016)

^[41] Section 2252(b)(1); United States v. Mateen, 806 F.3d 857, 861 (6th Cir. 2015)

^[42] Lockhart v. United States, 577 U.S. 347, 136 S. Ct. 958, 194 L. Ed. 2d 48 (2016)

^[43] 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)

^[44] 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)

^[45] United States v. Reinhart, 893 F.3d 606 (9th Cir. 2018)

^[46] United States v. Ary, 892 F.3d 787 (5th Cir. 2018); United States v. Sumner, 816 F.3d 1040 (8th Cir. 2016)

^[47] United States v. Mateen, 806 F.3d 857 (6th Cir. 2015)

^[48] United States v. Ary, 892 F.3d 787 (5th Cir. 2018)

^[49] United States v. Gauld, 865 F.3d 1030 (8th Cir. 2017)

^[50] United States v. Davis, 751 F.3d 769 (6th Cir. 2014)