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Defenses to receiving child pornography must take into account all facts February 14, 2010

Posted by jefhenninger in Articles.
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Because I see so many pleas to receiving/distribution of child pornography, I think lawyers just assume that receiving/distribution of child pornography goes hand in hand with possession. Of course, this is not the case. Sometimes a lawyer needs to concede possession and fight the receiving/distribution charge. Unfortunately, this is not always done with great results. Lawyers cannot just rely on an expert to tell them if the receiving/distribution charge is valid and what the defenses should be. They need to know the law and the facts for themselves so both can be weaved into trial the trial theme via cross examination, openings, closings, etc. Most importantly however, they must also address all of the facts.  

When possession is conceded, the defense will be that the receiving of the child pornography was accidental. In U.S. v. Miller (2008), the Third Circuit set forth an excellent review of the legal and factual analysis involved in determining if the knowing element exists. Unfortunately for Mr. Miller, it seems like his defense did not include a complete analysis of all of the facts. In Miller, the Court said:

The evidence required to establish the intent-element of § 2252A(a)(2) may be greater than that required to establish the intent-element of § 2252A(a)(5)(B) because, while a person who

knowingly receives” child pornography will necessarily “knowingly possess” child pornography, the obverse is not the case. Cf. United States v. Myers, 355 F.3d 1040, 1042 (7th Cir. 2004) (upholding sentencing calculation for defendant who received videos and computer-generated image files

depicting minors engaged in sexually explicit conduct, in violation of § 2252). In Myers, the court observed that “a person who seeks out only adult pornography, but without his knowledge is sent a mix of adult and child pornography,” could not be found guilty of knowingly receiving child pornography.

Id. “That same person, however, could be in violation of the possession provision of § 2252(a)(4)(B) if he or she decides to retain that material, thereby knowingly possessing it.” Id. It follows that the quantum of evidence required to prove knowing receipt of a downloaded file may, in some situations, be greater than that minimally required to prove knowing possession of the file.

More difficult is the question whether Miller received the images knowingly. Other courts, confronting this question, have deemed at least four factors relevant to this inquiry: (1) whether images were found on the defendant’s computer, see United States v. Irving, 452 F.3d 110, 122 (2d Cir. 2006); (2) the

number of images of child pornography that were found, see id. (finding defendant’s possession of 76 images relevant); (3) whether the content of the images “was evident from their file names,” United States v. Payne, 341 F.3d 393, 403 (5th Cir. 2003) (finding “number of images in [defendant’s] possession, taken together with the suggestive titles of the photographs” established knowing receipt); and (4) defendant’s knowledge of and ability to access the storage area for the images, see Romm, 455 F.3d at 997-1001 (addressing defendant’s ability to access cache files in hidden subdirectory); cf. Kuchinski, 469 F.3d at 861-63 (same).

We summarize the evidence bearing on these four factors:

(1) The government adduced no direct, forensic evidence that the images were downloaded onto Miller’s computer. Agent Kyle testified that it was his “educated guess” that Miller downloaded the images onto the zip disk via the Internet, perhaps by trading them in a chat room or by searching for them on a website. However, Agent Kyle went on to testify, the government had no proof from Miller’s hard drive that supported this hypothesis. Agent Price, on cross-examination, acknowledged that, despite the FBI’s use of forensic software designed to recover deleted material from hard drives, the FBI had discovered no evidence that Miller’s computer had been used to upload or download child pornography.

Agent Price further testified that there was no evidence that Miller ever used search engines to locate child pornography websites, or that such websites had ever been visited from Miller’s computer (the

FBI’s investigation did reveal, however, that two websites containing adult pornography had been visited from the computer). Agent Price also acknowledged that there was no evidence that Miller ever participated in email exchanges or online chat rooms that pertained to child pornography. Finally,

Price acknowledged that there was no evidence that Miller used a “wiping” or “eliminator” program to clear his hard drive of evidence that files had been downloaded. A. 296-97.

(2) The second factor, the number of images of child pornography found, likewise does not weigh in the government’s favor in light of the overwhelming number of adult images that were found. The government presented evidence pertaining to only twenty of the 1200-1400 images found on the zip disk, and the District Court subsequently determined, in the process of sentencing Miller, that only eleven of these images constituted child pornography. Miller contended that he was unaware of the existence of these images and, significantly, Miller volunteered the password of the zip disk to Agent Kyle, cautioning him that the disk contained pornography. Miller also presented evidence that 586 of the images were copied onto the disk at periodic intervals over a seven-hour period, suggesting that they were not individually viewed when they were being copied. Agent Price’s rebuttal to this suggestion was that Miller may have first downloaded the images onto his hard drive, or that of another computer, before copying them onto the disk. This possibility puts sharp light, however, on the facts that no forensic evidence of child pornography was found on Miller’s hard drive, and that there was no evidence adduced that another computer may have been used to download the images.

(3) Nor does the third factor, whether the content of the images “was evident from their file names,” weigh in the government’s favor. Several of the images were embedded with the names of websites that possibly advertised child pornography, but — according to Agent Kyle’s and Smith’s testimony — this does not suggest that the images were obtained from those websites. Moreover, these website names would not be seen unless a person opened and viewed the files. While there is strong evidence that Miller eventually came to view some of the images of child pornography that were on the disk, and thus to knowingly possess the images, this evidence does not lend much support to the inference that Miller knowingly downloaded the images.

(4) Turning to the fourth factor, whether the defendant had knowledge of and an ability to access the storage space for the images, it is clear that Miller had access to the images on the zip disk. Indeed, Miller admitted to storing image files, including adult pornography, on the disk. In this respect, the facts of this case are more akin to the facts of Romm, 455 F.3d at 997-1001, where the court found that the defendant’s knowledge that he could access cache files supported the inference that he knowingly possessed the files, than to the facts of Kuchinski, 469 F.3d 853, 861-63, where the court rejected this inference because the defendant was unaware of, “and concomitantly lack[ed] access to and control over the existence of the files.” In contrast to the facts before us, however, the defendant in Romm had stored images of child pornography on the hard drive of his computer, albeit in a subdirectory that was difficult for a typical computer user to access. The Romm court acknowledged that “[n]o doubt, images could be saved to the cache when a defendant accidentally views the images, as through the occurrence of a ‘pop-up,’ for instance.” 455 F.3d at 1000. However, the court concluded that this “[wa]s not the case” in Romm’s circumstance: “By his own admission . . . , Romm repeatedly sought out child pornography over the internet. When he found images he “liked,” he would “view them, save them to his computer, look at them for about five minutes [ ] and then delete them.” Id. By contrast, Miller has consistently denied that he knowingly viewed or had any interest in viewing child pornography.

 –So, you would think that Miller was out of the woods right? Not quite. I really hate to blame his attorney but I have to. His lawyer did not account for all of the facts of the case and did not appear to have really gone though the hard drive to address all of the issues. The Court went on to say that:

 “Beyond the facts relevant to these four factors, however, the evidence presents a fifth factor that may support the jury’s determination: the number of occasions that the images were copied onto the zip disk. Smith testified that the images copied onto the zip disk on October 13, 2002, were likely transferred automatically. However, images of child pornography were also copied onto the disk on subsequent dates. Specifically, according to their dates created, the eleven images that the District Court determined to actually be child pornography were copied to the zip disk on October 13, October 29, December 17, and December 20, 2002. A reasonable juror might have concluded, from this evidence, that Miller copied the images on more than one occasion.”

 –Admittedly, I don’t have all of the facts in front of me but what is Miller’s witness doing testifying to one thing when the facts show another? It seems like Miller’s lawyer did not address this issue in anyway. A lawyer must first identify all of the bad facts and then determine which are facts beyond change. If the defense cannot attack the dates then the defense must incorporate the different dates on the drive. If it doesn’t, than it is sure to fail. 

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Possession of child pornography is a lesser included offense of receipt of child pornography February 14, 2010

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While it may seem like common sense, the Government actually tried to argue that possessing child pornography is not a lesser-included offense of receiving child pornography. Luckily, the Third Circuit in U.S. v. Miller (2008) saw otherwise.

In Miller, the defendant argued that possessing child pornography is a lesser-included offense of receiving child pornography, and thus that § 2252A(a)(2) (prohibiting receipt) and § 2252A(a)(5)(B) (prohibiting possession) “proscribe the same offense.” The Court stated that for the purpose of double jeopardy analysis, two offenses are the same if one is a lesser-included offense of the other under the “same elements” (or Blockburger) test. This test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ . . . .” United States v. Dixon, 509 U.S. 688, 696 (opinion of the court) (internal quotation omitted); see also Blockburger v. United States, 284 U.S. 299, 304 (1932) (“[W]here 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 which the other does not.”).

The Court found that, as a general matter, possession of a contraband item is a lesser-included offense of receipt of the item. See Ball v. United States, 470 U.S. 856 (1985). In Ball, a felon convicted of possessing a firearm in violation of 18 U.S.C. § 922(h) (since revised) was also convicted of receiving that firearm in violation of 18 U.S.C. App. § 1202(a) (since repealed). Applying the same elements

test, the Supreme Court concluded, in Ball, that “[w]hen received, a firearm is necessarily possessed. In other words, Congress seems clearly to have recognized that a felon who receives a firearm must also possess it, and thus had no intention of subjecting that person to two convictions for the same criminal act.” Id. at 862 (internal quotation omitted).

Drawing on Ball, the Ninth Circuit, in United States v. Kuchinski, 469 F.3d 853, 859 (9th Cir. 2006), in which the defendant was indicted both under § 2252A(a)(2) and under § 2252A(a)(5)(B), observed, in dicta, that “[i]f, as it seems, the counts were based on the same acts, entering judgment on both the offenses would be improper.” See also United States v. Morgan, 435 F.3d 660, 662-63 (6th Cir. 2005) (noting that a defendant charged under § 2252A(a)(2), who pled guilty to violating § 2252A(a)(5)(B), had pled to “a lesser-included offense of the charged violation”); United States v. Mohrbacher, 182 F.3d 1041, 1048-49 (9th Cir. 1999) (consulting dictionary definitions of “receive” after concluding that “there is no indication that Congress intended a specific legal meaning for the term”). The observation of these courts that possession of child pornography is a lesser-included offense of receipt of child pornography, though offered in dicta, appears to be correct under Ball. See also United States v. Kamen, 491 F. Supp. 2D 142 (D. Mass. 2007) (holding that possessing videotapes depicting “a minor engaging in sexually explicit conduct,” in violation of § 2252(a)(4)(B) is a lesser-included offense of receiving the same videotapes in violation of § 2252(a)(2)).

As a result, the Court concluded that pursuant to Ball, possession of child pornography in violation of § 2252A(a)(5)(B) is a lesser included offense of receipt of child pornography in violation of § 2252A(a)(2).