• Offices in San Jose, Redwood City, Oakland and San Francisco
Sex Registration Opt-Out Strategies
• Our staff Includes Former Sex Crime Unit Lead DA Jim Reilly
• Probationary Therapy to Avoid Jail
• Respected Psychological and Medical Experts
• Computer Forensics Specialists
Our team of Child Pornography Defense lawyers is led by Jim Reilly, a former sex offense prosecutor and defense attorney for over 35 years. We have represented hundreds of individuals charged with possession and distribution of Child pornography in all Bay Area counties including Federal Court and have earned a reputation of aggressive defense of Child pornography cases. We have managed to avoid sex offender registration and jail time for many of our clients.
At Summit Defense Attorneys, we do not want you to become a victim of a witch-hunt mentality. We believe in vigorously defending accusations involving child pornography, and in helping to protect clients from the harsh consequences of the current laws. This means that we get involved with the case at the earliest possible stage – negotiating with the authorities when appropriate, and fighting to protect and preserve your reputation.
Recent Case Results:
Client: Fahim K.
Location: San Rafael
Attorney: Rabin Nabizadeh
Charge(s): Charges possession of child pornography
Client, an immigrant, was charged with possession of hundreds of images and video containing child pornography and was facing 9 years in state prison and deportation.
We retained a forensic expert and were able to show that the images could have been left added due to glitch in Bit Torrent-file sharing software and that this was corroborated by several on-line complaints by users.
Result: immigration safe plea to misdemeanor. No sex offender registration.
Client: Edward K
Location: San Jose
Attorneys: Rabin Nabizadeh, Collin Moore
Charge(s): Charges possession of child pornography
Client, a software engineer, was found in possession of hundreds of Gigabytes of Child Pornography. At trial, our team of attorneys argued that he was, infact, creating Image Recognition Software to detect child pornography and that Penal code section 311.8 would therefore be an affirmative defense.
Result: Jury Hung.
What is child pornography in California?
Under California Penal Code 311, child pornography is defined as material that contains a visual depiction of a minor engaging in or simulating sexual conduct.[1]
Possession of Child Pornography is a Wobbler offense (can be charged as either a Felony or Misdemeanor). The level of offense will almost always depend on the number of images you are alleged to possess as well as age range of minors depicted, though the county in which you are arrested will play a role in the level of offense. For example, the Santa Clara District Attorneys office is far more likely to file Felony charges than Alameda or San Francisco.
The maximum penalty for Child Pornography possession is 3 years in State Prison. However, a felony plea usually leads to a probation sentence with a local jail sentence. Generally speaking, cases in Santa Clara (San Jose, Palo alto etc) will be offered a 6 months county jail sentence. In Alameda, the initial offer is usually felony probation and no jail sentence. Regardless of the sentence imposed, California Penal section 290 requires a life time sex offender registration if you are convicted of possessing Child Pornography.
REVIEWS FROM PREVIOUS CLIENTS
There are several elements within that definition that need to be properly understood.
Firstly, when the law refers to a visual depiction, it is a very wide definition that includes every possible kind of visual information, data, or image. This means any kind of printed or written material – such as books, magazines, photographs, pictures, drawings – as well as motion pictures, films, videotapes, or visual recordings of any kind, and any kind of image or data that is viewed on a computer or is otherwise computer-generated, and includes data stored both by way of any kind of computer hardware or software, or online or within file sharing networks and the like.[2]
Secondly, sexual conduct is defined in the Penal Code as any of the following acts, either actual or simulated:
whether or not any of the above conduct is performed alone or between members of the same or opposite sex.
This definition covers a variety of sexual acts, but it is important to note that ‘child pornography’ does not include material that is produced for scientific, educational, or artistic purposes. Our Team of lawyers have successfully argued at trial that this exception applies to defendant aiming to create Image Recognition software.
Further, in relation to charges for the distribution and production of child pornography, the material must also meet the legal definition of obscenity. The California Penal Code defines ‘obscene matter’ as being matter, which, “taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.”[4]
So, to prove that something is legally ‘obscene’, the Prosecution has to prove three things:
All three of those factors must be judged by applying the standards of an average person, living today, in California.
What is child pornography at the Federal level?
The Federal definition of child pornography is different to the state one. Under Section 2256 of the Federal Code “child pornography” means “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.”
The key part of the definition is that the minor is depicted engaging in sexually explicit conduct. Sexually explicit conduct is also defined in the Federal Code. In relation to parts A and B of the above definition, it means “actual or simulated:
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person.”
And, in relation to part B of the above definition of child pornography, it means “(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;
(ii) graphic or lascivious simulated;
(I) bestiality;
(II) masturbation; or
(III) sadistic or masochistic abuse; or
(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person.”
In this context, ‘graphic’ means being able to see any part of the genitals or pubic area. Lascivious refers to an intention to sexually arouse.
Similarly to the defense available in California, in the case of many Federal matters, material that has “serious literary, artistic, political or scientific value”[5] may not be considered child pornography.
What is NOT child pornography?
As both the state and Federal level, the question of whether material is child pornography is not necessarily black and white. Depending on the charge, there are several questions that may need to be answered, including:
Any of these questions can raise a serious issue to be contested. At Summit Defense Attorneys, we have represented people who have been charged with child pornography offenses where it turned out that the material in question did not actually fit the legal definition of child pornography – and, therefore, our clients had not committed any crime.
For example, a man might be charged with possession of child pornography based on pictures of young-looking females dressed in skimpy ‘school uniform’ outfits engaging in sex acts. However, there is certainly legal, adult pornography that exists where women who are over 18 are made to look very young. So, unless the prosecution can prove that the people depicted in the pictures are actually minors, then no child pornography charges could be sustained in this case.
Why do I need a lawyer?
Not only is it your right, but in this very complex area of the law you need an experienced criminal defense lawyer on your side. Summit Defense has handled many matters involving child pornography accusations where cases were dismissed or where we were able to help clients avoid a jail sentence.
At Summit Defense Attorneys, we know that early intervention is your best chance of success. It is important to contact a lawyer as soon as you can, because there may be opportunities to negotiate your case at the start that will not exist later. We can help defendants at any stage of the process, but the sooner you contact us, the sooner we can begin working on your case.
Any criminal accusation is a serious matter and, in the case of child pornography charges, may have consequences for the rest of your life. If you are facing an accusation of possessing or otherwise dealing with child pornography, contact Summit Defense Attorneys as soon as possible for a free consultation.
What is the cost?
When you have your first, free consultation with an attorney from Summit Defense, we will discuss the estimated cost of your case with you. Every matter is considered individually, and depends on various factors, such as the seriousness of the charges against you and the stage that the case is up to. At Summit Defense Attorneys, we will always act in your best interests, and that means keeping costs reasonable without compromising on your defense.
INVESTIGATION
The investigation of child pornography offenses can be done by either local police, Federal authorities, or by state and Federal authorities acting together. If you are contacted by law enforcement officers, or subject to a police investigation of any type, you should contact Summit Defense Attorneys immediately so we can monitor the investigation and liaise with the police on your behalf.
How do the authorities determine who to investigate?
The authorities might be investigating one particular person or group of people on the basis of information from a member of the public, or because they have been contacted by an Internet Service Provider (ISP) about activity or material on their network.
Further, there is often continual internet surveillance conducted by law enforcement. They monitor sites, chat rooms, and message boards on the internet where people who share child pornography are likely to be found. You may have heard of the police posing as young children online to ‘catch’ offenders – this is a common way for people to get caught up in child pornography and other sex offense accusations.
When do the local police investigate?
The local police are those police at the state level, and they will investigate any child pornography accusations within their jurisdiction. This means that they are usually concerned with offenses committed by one person within their state or local area, or by two or more people acting together but within the same area.
Local police investigate many accusations of possession of child pornography. However, they may contact the Federal authorities if they discover that a case is complex, or involves activities that cross state lines and involve multiple defendants. At that point, the Federal authorities may take over the case, or may work in concert with local police.
When do the Federal authorities investigate?
There are various law enforcement bodies at the Federal level that can be involved in child pornography investigations. They include the FBI, Homeland Security, the Internet Crimes Against Children Task Force (also known as ICAC), and also the United States Postal Inspection Service.
The various Federal bodies might sometimes work together, but are often involved in different types of investigations. For example, the Postal Inspection Service is concerned with enforcing the many Federal laws that cover the United States Postal Service, and might be involved in investigations to do with child pornographic material being shared or distributed via the Postal Service.
The ICAC Task Force was set up by two Federal bodies – the Department of Justice and the Office of Juvenile Justice and Delinquency Prevention. The Task Force actually works with both Federal and local-level law enforcement bodies, and has set up many task forces around the country where it assists law enforcement bodies in the monitoring and investigation of internet crimes involving or targeting children. A large component of their work is to do with investigating and detecting child pornography. So, while you might encounter an officer who works for or with a task force, they will still be from a local police force, or a Federal authority.
The FBI and the Department of Homeland Security have at least two major operations dedicated to detecting sexual crimes involving children, including those to do with child pornography. These bodies are largely concerned with offenses that have a national or international element. For example, the investigation of a ‘ring’ that distributes child pornography across state lines, or that brings child pornography from overseas, and also where this kind of illegal activity is happening on the internet and the potential offenders are across different states, or different countries. The offenses that the FBI and Homeland Security investigate are usually more complex, such as those involving huge volumes of material, many suspects, or allegations of many different kinds of illegal behavior.
If you are contacted by or subject to investigation by any of these Federal law enforcement bodies, you should get legal advice as soon as possible. A Federal investigation can mean Federal charges, and as we will explain below, the Federal system can expose defendants to much more serious penalties. Our attorneys can help you to navigate the complex system of state and Federal-level authorities, and try to ensure that you do not risk exposure to the more harsh Federal system.
How do I know if I’m being investigated?
With the kind of online monitoring and surveillance that the authorities conduct, it is common for people to be under investigation and not know it at all. The first time that you may know that you are under investigation is if the authorities turn up to your home or office with a search warrant.
If the police, FBI, Department of Homeland Security, or officers from any other law enforcement body attend your home or office with a proper search warrant, you should let them in and leave them to conduct the search. You have a right to call an attorney if you want, and you should not say anything to the officers while the search is happening.
What should I say to the officers when they conduct a search?
When they conduct a search, officers may try to ask you questions. It is very important, however, that you do not say anything while the search is occurring, and make no comment on anything that the authorities may take with them.
In fact, you only have to tell them your name and maybe some other basic details, such as confirming your address. It might be tempting to want to explain something to the police, or comment on the way the search is being conducted, but none of that is helpful – and nothing that you say will stop the authorities from completing their search.
The police just searched my house – what do I do?
We can’t emphasize this enough – it’s best to not say anything at all to the police at any stage, including during the time that they are conducting a search. Rather, you should let your lawyer speak for you. If you have your house or office searched, you should contact Summit Defense Attorneys immediately – in an emergency, we’re available to help you 24 hours a day, 7 days a week.
In cases concerning child pornography, it is common for the authorities to search someone’s home or office and take away their computer and other items of interest for analysis. This obviously leaves you in the lurch – not only are you without your computer, but you do not know what is happening, what the authorities are looking for or might find, and how long the process will take. We understand that this can be a nerve-wracking experience – and this is why you should call us immediately. By getting an experienced attorney on your case as soon as a search has been conducted, you are putting yourself in the best possible position to understand the process and defend your rights.
How can Summit Defense help at the investigation stage?
You should have an expert defense lawyer working on your case as soon as possible – and that means right from the investigation stage. For experienced attorneys, there are opportunities to influence the course of a matter right from the outset. The attorneys at Summit Defense are not only highly experienced in these cases, but several have worked as police and prosecutors themselves, which means that they know how the system works from both sides.
We have had success in the early stage of many cases – if material found is minimal, or relatively benign, there are cases where we have been able to avoid the filing of charges altogether. If charges are to be filed, we can try to negotiate with the Prosecutor making those decisions and ensure that your matter is dealt with at the state level wherever possible. We can also help to ensure that any exposure to the media is kept to a minimum. All of this work needs to be done behind the scenes before any charges are filed and, most importantly, by a lawyer who knows the path that these matters take.
THE DECISION TO PROSECUTE
Once the police finish their investigation – or at least have what they believe to be a substantial body of evidence – they will send the material to the relevant prosecution service. The US or District Attorney will then decide which charges are to be filed, and in which jurisdiction. In the meantime, the police may arrest the suspect, or else they will wait for the prosecution to apply for a search or arrest warrant first.
How can Summit Defense help when the authorities are making the decision to prosecute?
Even before charges are filed there are several things that your attorney can do for you. In child pornography matters, our early involvement in our client’s cases means that we are often in the position to help our clients by keeping them informed about the progress of an investigation and to do things such as negotiating lesser charges, or arranging a surrender at the police station instead of a publically embarrassing arrest.
Summit Defense represents clients across the Bay Area, and our attorneys have over 25 years experience. Our staff includes former prosecutors and a former police officer, and our experience means that we have local knowledge of the prosecuting authorities and how they operate. We put this knowledge to good use when representing our clients. For example, in one matter that we handled, we were in contact with the District Attorney when they were considering the evidence against out client and deciding which charges to file. We were able to provide evidence from the defense side in relation to several allegations, which meant that the most serious charges against our client were never filed.
And even in cases where the evidence is strong and the Prosecutor does decide to file charges, our early involvement means that we are often able to start negotiations that can lead to a favorable plea bargain or an agreement to restrict the material that is put before the court.
What kind of cases does the District Attorney prosecute?
The District Attorney will ordinarily prosecute cases that are referred to them by the local police, or less serious matters that have been referred from the US Attorney. This usually means cases where the alleged criminal activity is restricted to the state of California.
When the District Attorney is running a prosecution, the matter is conducted in accordance with the state laws of California. We explain the different state offenses here, and the possible penalties here.
What kind of cases does the US Attorney prosecute?
The US Attorney usually prosecutes those matters that have been investigated by the Federal authorities – the FBI, the Department of Homeland Security, the US Postal Inspection Service, or the Internet Crimes Against Children Task Force. The US Attorney might also prosecute cases that are originally referred from a local police force, if the matter is complex enough. The US Attorney will typically prosecute complex matters where multiple defendants are involved, where alleged criminal activity crosses state lines or national borders, or where the volume of the material in question is very large.
When the US Attorney takes on a prosecution, the case is conducted in Federal Court and under the federal legislation that covers child pornography offenses. The penalties applicable to federal offenses are more serious than those at the state level, as we explain here. The federal sentencing guidelines are complex and if the US Attorney prosecutes you, there is no doubt that you need a skilled and experienced lawyer on your side – if you are facing Federal prosecution, you should call us immediately for expert advice.
OFFENCES RELATING TO CHILD PORNOGRAPHY
There are several different offenses that deal with the issue of child pornography. Generally speaking, they center around three main activities – the possession of child pornography, the distribution and receipt (or sharing) of child pornography, and the making (or production) of child pornography.
For each different offense, the prosecution has to offer up specific evidence that proves the charge beyond a reasonable doubt. Below, we outline the various offenses and explain what the prosecution needs to do to prove each charge.
POSSESSION OF CHILD PORNOGRAPHY
What constitutes the offense of possession of child pornography in California?
Possession of child pornography is an offense under California Penal Code 311.11.
If you are facing a charge of possession of child pornography, the Prosecutor has to prove the following elements of the offense beyond reasonable doubt:
So the Prosecutor must establish both the nature of the material – that it fits the legal definition of child pornography – as well as two kinds of knowledge, namely, that you knew you had possession of it, and you knew the nature of the material.
Knowingly possessed or controlled the material
The first element that the Prosecutor must prove is that you possessed or controlled the material. This does not mean that the Prosecutor needs to prove that you owned the material, or that you had some other right or lawful claim to it, but simply that it was in your possession or control. In other words, this means that you had it, or that you had the ability to determine where the material was or who had access to it.
For example, it may be that you had a DVD that contained certain footage. You give the DVD to a friend for safekeeping. You tell them not to watch it, but to keep it in a safe place and give it back to you when you ask for it. Even though the DVD is in your friend’s possession, it remains in your control because your friend is keeping it for you, and you have the power to ask for it back at any time.
Keep in mind that the material in question can be almost anything – it is any representation of information, data, or an image.[6] So, this includes things like pictures, photographs, magazines, negatives, photocopies, videos, DVDs, CDs, and any kind of data storage medium (such as images stored on a hard drive or a USB drive), in any kind of device, including computers, cameras, and phones.
Further, you do not have to possess or control the material for a very long period of time. Even if someone downloads images and then deletes them a short time later, the law will still consider them to have been in possession of the images.
Material involved person/s under 18 years of age
This second element of the offense may seem relatively straight-forward, in that it does not involve the proof of any kind of knowledge, just the fact of whether the person or persons depicted in the material are under 18 years of age. But remember that the Prosecutor must still prove this beyond a reasonable doubt – while some images speak for themselves, there are certainly cases where it is not at all clear whether a person in a picture or a video is under 18.
For example, if certain pornographic images are found on an individual’s computer hard drive that clearly depict young people, possibly teenagers, the issue for the prosecution is whether they can prove that those people are minors as opposed to actually being over 18 and just made to look younger than they are. In such a case, the prosecution might have a difficult time trying to prove this element of the offense. On the other hand, if the images clearly depict pre-pubescent children, then it can be said that the images speak for themselves and the element would be established.
Knew the material depicted a person under the age of 18 years engaging in or simulating sexual conduct
The final element that the Prosecutor must prove is that you knew the nature of the material. That is, that you knew it depicted a person or people under the age of 18 years engaging in or simulating sexual conduct.
Penal Code 311.4(d)(1) provides an extensive definition of what “engaging in or simulating sexual conduct” means, and it is not restricted to actual sexual intercourse. Rather, it includes many different kinds of activity that may be done for the sexual stimulation of the viewer, including simulated sexual intercourse, exhibition of the genitals, and other sex acts. The act does not have to be actually done, it can also be simulated – that means that the material depicts a person or people doing anything that “has the appearance of being sexual conduct.”[7]
So, for the Prosecution to succeed in proving this element, they have to prove that the material was of this nature, and that you were aware of it. The Prosecutor will usually argue that the images speak for themselves. That is, by proving that you had the material and had seen it, and then, given the nature of the material, they suggest that it would be clear that you had the required knowledge. This is not always the case, however, as we have shown in several cases that we’ve defended – as discussed below.
What constitutes the Federal offense of possession of child pornography?
The possession of child pornography is an offense under Title 18, Chapter 110, Section 2252 of the US Code. If you are prosecuted for this offense, the Prosecutor has to prove the following:
The Federal offense is similar to the state offense – but there are some important differences. Let’s briefly examine the separate elements.
Knowingly possessed, or knowingly accessed with intent to view
This element covers both physical possession of material, and accessing it – such as on a website. The Prosecutor in a Federal case needs to prove that you either had the subject material in your physical possession, or that you accessed it with an intent to look at it.
This element is arguably broader than the element of ‘knowing possession’ under Californian law, in that it makes it clear that simply accessing material is illegal as well. For example, if you view child pornography on the internet, even without downloading or keeping any of the images, videos, or other matter that you view, you may still be liable under Federal law.
Keep in mind that ‘possession’ also includes the idea of ‘constructive possession’ – that is, when something is not necessarily in your physical possession, but you have control over it. So, this means that this aspect is largely the same as when the Californian law refers to ‘possession or control’.
Possessed in the United States, or otherwise satisfies for imposition of Federal law
This second element of the offense is largely a technicality – because we have a Federal system in the US, there are rules about when the states can make laws and enforce them and when the Federal government can. Basically, for the Federal government to be able to engage in prosecution of child pornography offenses, they must satisfy the requirements that would make the offense subject to Federal jurisdiction. Those requirements, however, are really quite broad – and especially considering the very connected world that we have today, and the all-pervasive nature of the internet, almost always satisfied in a case to do with possession of child pornography.
Production involved use of a minor/s engaging in sexually explicit conduct
For the purposes of Federal law, a minor is anyone under the age of 18.
The definition of ‘sexually explicit conduct’ is quite broad, and includes engaging in sexual intercourse or other sex acts, or simulation of them, and other acts done to sexually gratify the viewer. It also includes ‘lascivious exhibition’ of the genitals or pubic area – although what is considered lascivious is not at all a fixed concept. This is something that a jury must judge, based on a consideration of the overall content of the material. For example, the law does not mean to criminalize material that is produced for educational, artistic, or scientific purposes. Further, there must be some kind of sex act or sexual display of the genitals – if an image shows a young girl sitting alone in what might be considered a ‘sexy’, adult pose, but she is clothed in a swimsuit and her genitals are covered, then the image could not be considered child pornography under Federal law.
The material visually depicted minor/s engaging in sexually explicit conduct
This fourth element is similar to the previous one, but makes it clear that the material must actually show a minor, or minors, engaging in sexually explicit conduct. The law is concerned with the visual depiction of such acts.
Knowledge that the visual depiction was of sexually explicit conduct, and knowledge that at least one person was a minor
This final element requires the Prosecutor to prove that you had specific knowledge of the content of the material. The Prosecutor will usually try to prove this by letting the images speak for themselves. That is, by proving that you had the material and you had seen it, and then, given the nature of the material, argue that it is clear that you had the requisite knowledge. However, there are cases where this element is not at all easy to prove, and where the prosecution is not able to demonstrate that you knew that anyone involved in it was under 18 years of age.
Is the possession of child pornography a felony or a misdemeanor?
The possession of child pornography is usually charged as a felony, although it can be dealt with as a misdemeanor under California law. The District Attorney decides whether charges in California will be filed as a felony or a misdemeanor, and it is usually only those matters where there was only a small amount of material found – for example, just a few images – or where the material itself is relatively benign, that will be dealt with as misdemeanors.
Generally speaking, though, most people who face possession of child pornography charges at the state level will be dealing with a felony charge, and Federal matters are always felonies. This means that the penalties and other consequences that defendants are exposed to are very serious, especially in the case of Federal offenses. If you are charged with possession of child pornography, contact Summit Defense Attorneys to discuss your options, to limit your exposure, and to fight for the best result possible.
How has Summit Defense successfully defended charges of possession of child pornography?
In a recent matter defended by Summit Defense Attorneys, our client was charged with possession of child pornography. The material in question was actually a single image, and that image did depict a person under the age of 18 in the requisite sexual manner. However, our client had eyesight problems, so what was in question was our client’s knowledge that he had the material, and of the nature of the material that was found on his computer. It was very clear to us that the Prosecutor was not able to prove all of the elements of the charge, that is, not able to prove that our client knew that he had possession of the material, or that he knew the nature of the material.
Given the circumstances and the lack of evidence, we were determined that the matter would not go to trial. Rather, we insisted on a pre-trial hearing where the evidence would be examined by a Judge to determine if the Prosecution’s case was strong enough to go to trial. We were able to call evidence about our client’s eyesight problems, and the Judge was able to examine the image – which was only a single image, and a relatively small and poor-quality one at that. Given that we were able to show how weak the evidence from the Prosecution was, our attorney was successful at the pre-trial hearing, and the Judge dismissed the case.
In another case that we defended, we were able to show that the material did not meet the statutory definition of child pornography. The police had actually recovered a large amount of pornographic material from our client’s computer, but they retrieved only six images that they argued were child pornography. However, upon getting access to those images, our attorney knew that they did not meet the definition of child pornography that is in the legislation – in some images, it was not at all clear that the females shown were under 18. In other images there were young females shown in ‘sexy’ or suggestive poses, but they were clothed, and not engaged in or simulating any sex acts. This meant that none of the images were actually child pornography, and at a preliminary hearing the Judge held that there was no case to answer.
This case makes it very clear that just because the police find material that they find distasteful or unpleasant, it does not mean that someone has committed an offense. Unfortunately, however, these cases also show that the prosecuting authorities will still go ahead and charge someone with these very serious offenses – even if there are problems with the evidence. This is why the expert attorneys at Summit Defense scrupulously examine every piece of evidence that the Prosecution want to use against you, and determine whether it really does meet the standard of proof of ‘beyond reasonable doubt’.
DISTRIBUTION OF CHILD PORNOGRAPHY
What constitutes the offense of distribution of child pornography in California?
The distribution of child pornography is an offense under California Penal Code 311.1 and 311.2. The exact details of the charge vary because the law treats more seriously those cases where the distribution was for payment (‘commercial consideration’), or if it was to a person under 18 years old.
If you are charged with an offense related to the distribution of child pornography, the Prosecutor has to prove the following elements beyond reasonable doubt:
If the charge is pursuant to Penal Code 311.2(b), then there is an additional element, namely:
Alternatively, if the charge is under Penal Code 311.2(d), then the additional element is:
Sent or brought material into California, or possessed, distributed, or offered to distribute
The first element that the Prosecutor must tackle is concerned with what was done with the material in question. It is not only the actual distribution or sharing of material that is prohibited, but also having it in your possession with an intention to distribute in the future, or sending or bringing it into the state, or offering to do so.
We already know that possession means having both physical possession of something, or at least having control over it – sometimes known as constructive possession. If the Prosecutor cannot prove that you had possession of certain material, then it is enough to prove that you sent or brought material into California, or caused that to be done. Further, the Prosecutor could try to prove that you distributed or offered to distribute the material.
At this stage, and for the basic offense of ‘distribution of child pornography’, the Prosecutor does not have to prove that you received any money or any other benefit when the material was distributed. To distribute simply means to transfer possession of the material, usually directly from one person to another, or to many via computer networking or file sharing.
For example, the prosecution may allege that you had a DVD that contained child pornography, and that you gave it to someone else. That would be enough to constitute distribution. An offer to distribute, on the other hand, could be something as simple as agreeing to a request to copy files containing child pornography images onto a USB drive and send them to a third person. If you agreed to that request, you may be guilty of this offense, even if you didn’t actually end up performing the task at all.
Material was obscene
For any distribution offense in California, the Prosecutor must prove that the material in question was obscene. In this context, the term ‘obscene’ has a particular legal meaning – it means “matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.”[8]
So, this is something that the judge or jury must decide, by looking at the material as a whole and applying the standards of the ‘average person’, and answering three questions:
Also, in matters concerning alleged child pornography, the judge or jury may look to the age of the minors depicted in the materials when determining if it is obscene.[9]
If the Prosecutor cannot produce evidence to persuade the judge or jury to answer ‘yes’ to all three questions, then he will not be able to prove that the material fits the legal definition of ‘obscene’ – and the charge will fail.
Knew the material showed a person/s under the age of 18 years engaging in or simulating sexual conduct
To establish this third element, the prosecution has to prove that at the time you sent, brought, possessed, distributed, or offered to distribute the material, you knew its nature – that is, that you knew is was material showing a person or persons under the age of 18 years engaging in or simulating sexual conduct.
This element of the offense is concerned with the mental state of the defendant at the time of the alleged offending behavior. It really has two aspects – that is, that the prosecution has to prove that you knew the nature of the material, and they also have to prove that you had that knowledge at the time of the offense. This means, for example, that the Prosecutor has not proven this element if the evidence only shows that you were aware of the material after the fact.
Take our previous example of someone asking you to copy data on to a USB drive and give it to a third person. Imagine that the person was your friend, and was asking you to give the USB to another friend. If your friend told you that what you were copying was a film that the other person wanted to see, you had reason to believe that friend, and the file name of the data was actually the name of a popular Hollywood film, you may have had no cause to doubt your friend. If, however, the file or data actually turned out to contain some child pornography, would you be guilty of the offense of distributing it? No – because you did not have the requisite knowledge. What if the friend that you gave the USB with the data on it later told you that the material on it was actually child pornography, would you be guilty of the offense? Again, no – because this element requires proof that you knew about the nature of the material at the time of the offending behavior, that is, at the time that you copied the file and gave the USB to your friend.
Intended to sell, distribute, show, or exchange the material with someone else
This element refers to what the prosecution must prove you intended to do with the material. This is the main element that makes this offense different from the offense of possessing child pornography – the intention to pass it on to someone else, at some point in time.
The Prosecutor does not need to prove that you intended to do so immediately, or that you had any specific person or receiver in mind, but simply that at the time, you had an intention to distribute, show, sell, or exchange the material in question.
The prosecution can attempt to prove this element with either direct or indirect evidence of a defendant’s state of mind. For example, if the prosecution is able to produce emails wherein you agree to share, or send, or otherwise exchange material, then that would be direct evidence of your intention to distribute it. Indirect evidence might, for example, be the defendant’s membership in a group that has a history of sharing such material.
It is not uncommon, however, for a charge of distribution to be filed when the prosecution have difficulty proving this element of the offense beyond reasonable doubt – and we have tried several cases where the Prosecutor were not able to prove that our client had the intent to distribute, as we discuss below.
Additional element – intended to distribute for money or other commercial benefit
As we noted earlier, the distribution of child pornography for commercial gain is considered a more serious offense. If the Prosecutor is alleging you distributed such material for financial or other reward, then they have to prove this element as well.
This Prosecutor must prove that you had the intention at the time you sent, brought, possessed, distributed, or offered to distribute, the material. Again, this can be proved through direct evidence, such as evidence of payments that you received for sharing or exchanging certain material. It could also be evidence, for example, of a defendant placing stills of videos on a website with prices for viewing listed next to them – even if no payments were actually made or received, this still demonstrates an intention to distribute for money.
This element is not concerned with receiving only monetary payments – it can also be satisfied if the Prosecutor shows that you received some other commercial benefit, such as some kind of goods in exchange for the material. It must be shown, however, that the intention to receive money or some other commercial benefit occurred at the time of the offending behavior, and not simply that some benefit was received after the fact. For example, if a defendant gives a DVD containing child pornography to someone else, that may be distribution but, without further evidence, this additional element is not fulfilled. Even if the person later gave the defendant $20 and said something like “that DVD you gave me was worth paying for”, that only demonstrates a payment received after the fact, and not an intention to receive payment at the time.
Additional element – intended to distribute to, or with, a person under 18 years of age
This is another additional element that can make the offense of distribution of child pornography more serious – the Prosecutor must prove that you had the intention to distribute to or with a minor at the time that you sent, brought, possessed, distributed, or offered to distribute, the material.
Again, this can be proved through direct evidence, such as evidence of emails sent between the defendant and a person under 18 concerning the sharing or exchange of material. Even if no material was actually shared, exchanged, or otherwise distributed, if the Prosecutor can prove that you intended to do so, then this element can be satisfied.
What constitutes the offense of sexual exploitation of a child in California?
The sexual exploitation of a child is an offense under California Penal Code 311.3. While this may sound like a fairly broad description, if you are charged with this offense the Prosecutor is alleging that you knowingly developed, duplicated, printed, or exchanged material that involved a film of a minor engaging in sexual conduct. So, this is an offense that is connected with the distribution of child pornography, but does not require any actual distribution, or even the intent to distribute, for a charge to be successful.
The elements that the Prosecutor must prove beyond reasonable doubt are as follows:
Knowingly developed, duplicated, printed, or exchanged
To prove this first element of the charge, the Prosecutor must show that you had knowledge that you were developing, duplicating (copying), printing, or exchanging the material in question.
It is important to note that the law actually includes a defense to the charge based on this element. In Penal Code 311.3(e) and 311.3(f), two separate defenses are contemplated. Firstly, it is a defense to a charge under this section if the person works for a commercial film developer and is acting in accordance with the instructions of their boss and in their regular duties. So, for example, consider someone who works in a store that develops photos and transfers films on to more modern data storage facilities. They are given an old videocassette and told to copy it on to a DVD. Even if the videocassette actually contains some material that constitutes child pornography under this section, they will not be guilty of the offense if they are just following instructions and doing their job.
The second possible defense, under 311.3(f), is if the material is unsolicited, meaning that the person did not ask for it, and that they received it without their knowledge or consent through a facility, network, or system over which they have no control. For example, imagine that someone is part of a file-sharing network for work purposes. Someone in their office controls and administers the network, and they do not have any direct control of it. If illegal material is received on to their computer, or transmitted to others via the network, then this section may provide a defense provided they had no knowledge of this happening.
The material incorporated film or filmstrip that depicts a person under the age of 18 years engaged in an act of sexual conduct
This second element goes to the nature of the material in question. This section specifically covers films or filmstrips – that is, recorded, moving images. The film or filmstrip must show a minor engaging in an act of sexual conduct. The law defines what sexual conduct is, and that includes engaging in sexual intercourse or other sex acts, or simulation of them, and other acts done to sexually gratify the viewer.[10]
What constitutes the Federal offense of distribution of child pornography?
There are several offenses related to the distribution of child pornography under Title 18, Chapter 110, Section 2252 of the US Code. These include the transport, shipping, or sending (including by computer) of child pornography, and also the receipt, distribution, and copy for distribution, of material constituting child pornography.
To prove any of these Federal distribution offenses against you, the Prosecutor would have to prove the following elements:
Knowingly transported or shipped
If the prosecution is bringing a charge that alleges this element, they are charging that you knowingly sent child pornography. They do not have to prove to whom the material was being sent, simply that you sent it. The sending could have taken place by computer – so, by email or through file sharing – or by postage, courier, or any other method of shipment or transport.
This element does not just cover ‘official’ means of transport or sending, however – for example, if you knew someone who was driving interstate, and you gave them a box of material that included child pornography to drop off to someone at their destination, then that action would be covered by this section.
The most important part of this element, however, is that the Prosecutor has to prove that you knew what you were sending. In many cases, by simply proving that the person sent the material, that would be enough – this is because, in most cases, it would be ridiculous to suggest that someone, for example, would go down to the post office and send a package of material to someone else without knowing what it was.
However, this can be an issue in cases involving alleged distribution via the internet. There may be some difficulty proving knowledge if, for example, an image that constituted child pornography was sent with a large number of otherwise legal pornographic images. It is not enough for the Prosecutor to suggest that you probably knew about the material – they must prove, beyond reasonable doubt, that you did know.
Knowingly received, distributed, or reproduced for distribution
This is an alternative to the previous element, and simply covers different kinds of behavior. This means that the Prosecutor is alleging that you received or distributed material that constitutes child pornography, or that you had certain material that you copied or otherwise reproduced so you could distribute it.
This element covers the actual distribution of child pornography – by any means – as well as the receipt of it from someone else or some other source, and the reproduction of it for distribution. If the Prosecutor is alleging that you reproduced material with the intention of distributing it, they do not have to prove that you knew to whom or where you were going to send it, but simply that you were copying or reproducing the material with that aim in mind.
Again, the most important part of this element is that the Prosecutor has to prove actual knowledge – merely being able to suggest that you might have had the intention to distribute, or that you probably knew what you were sending to someone else, is not enough to satisfy this part of the charge.
Transportation, shipment, distribution, receipt, or reproduction in the United States, or otherwise satisfies for imposition of Federal law
This second element of the offense is largely a technicality – because we have a Federal system in the US, there are rules about when the states can make laws and enforce them and when the Federal government can. Basically, for the Federal government to be able to engage in prosecution of child pornography offenses, they must satisfy the requirements that would make the offense subject to Federal jurisdiction. Those requirements, however, are really quite broad – and especially considering the very connected world that we have today, and the all-pervasive nature of the internet, almost always satisfied in a case to do with distribution of child pornography.
Production involved use of a minor/s engaging in sexually explicit conduct
The prosecution must prove that the making of the material involved the use of a minor or minors engaging in sexually explicit conduct. Keep in mind that, for the purposes of Federal law, a minor is anyone under the age of 18.
The definition of ‘sexually explicit conduct’ is quite broad, and includes engaging in sexual intercourse or other sex acts, or simulation of them, and other acts done to sexually gratify the viewer. It also includes ‘lascivious exhibition’ of the genitals or pubic area – that is, exhibition intended to arouse or gratify the viewer.
The material visually depicted minor/s engaging in sexually explicit conduct
This fourth element is similar to the previous one, but makes it clear that the material must actually show a minor, or minors, engaging in sexually explicit conduct. The law is concerned with the visual depiction of such acts.
Knowledge that the visual depiction was of sexually explicit conduct, and knowledge that at least one person was a minor
This final element requires the Prosecutor to prove that you had specific knowledge of the content of the material. The easiest way for the prosecution to prove this is, usually, to allow the images to speak for themselves. That is, by proving that you had the material and that you had seen it, then given the nature of the material it is clear that you had the required knowledge.
However, there are cases where this element is not at all easy to prove, and where the prosecution are not able to demonstrate that you knew what the material was, or knew that anyone involved in it was under 18 years of age. If we consider the example from before, of sending a large amount of material via the internet, where there were one or two images constituting child pornography along with a large number of images constituting otherwise legal adult pornography, we can see that the Prosecutor might not always be able to prove actual knowledge on behalf of the sender.
Is the distribution of child pornography a felony or a misdemeanor?
The distribution of child pornography, and any of the related offenses, are always felonies under Federal law. This includes the actual distribution and the intention to distribute, as well as those offenses that relate to the copying and reproduction of material. At the state level, there is provision for some distribution matters to be dealt with as misdemeanors – but, in reality, that almost never happens, and almost all distribution and related offenses are charged as felonies.
This means that the penalties and other consequences that defendants are exposed to are very serious, especially in the case of Federal offenses. If you are charged with distribution of child pornography or any related offense, contact Summit Defense Attorneys to discuss your options, to limit your exposure, and to fight for the best result possible.
How has Summit Defense successfully defended charges of distribution of child pornography?
We have several matters where our client was charged with distribution of, or intention to distribute, child pornography but where the prosecution was unable to prove that our client had such an intention at all. Unfortunately, however, it is not uncommon for the Prosecutor to allege an intention to distribute on the part of anyone alleged to have prohibited material in their possession.
In one case, this was exactly what happened – our client was alleged to have possessed several illegal images, said to constitute child pornography, on his computer. The images were actually contained in a folder that was connected to an online file-sharing and storage program. Because the images were in that folder, the prosecution suggested that it was proof that he intended to distribute them with other members whom he had signed up to share material with. However, we successfully argued that was not the case – many people use these programs to store data ‘in the cloud’ and as a back-up, in case something goes wrong with their own computer. In this case, simple having material in a folder connected to a file-sharing program did not necessarily prove, beyond a reasonable doubt, that the person had an intention to distribute it – especially when there was evidence to suggest that the defendant may not have known about the images, had never moved the images from that folder, and where there was no other evidence that he had been seeking out child pornography.
PRODUCTION OF CHILD PORNOGRAPHY
What constitutes the offense of production of child pornography in California?
There are several offenses related to the production, or making of, child pornography in California. These are as follows:
Apart from the actions described in each of those sections, these offenses have some general elements in common.
Knowledge that the person is a minor, or being in possession of facts on the basis of which they should reasonably know the person is a minor
This is the mental element that is common to all production offenses. The Prosecutor can rely on proving either actual knowledge on the part of the defendant, or what is known as constructive knowledge. That means that it is enough for the Prosecutor to show that the defendant actually knew that the person was under 18 years of age, but they can also show that the defendant knew certain facts that should have reasonably told them that the person was under 18.
For example, it may be that the person in question has told the defendant that they are 19 years old. However, if the defendant is a relatively young-looking girl, and the defendant sees some books in her bag with her name and the name of a junior high school on it, then the Prosecutor may be able to argue that the defendant can be considered to have ‘constructive knowledge’ of the fact that the person is under 18 years of age.
Commercial purpose
In the offense under Penal Code 311.4(b), the Prosecutor is alleging that the defendant engaged in certain behavior ‘for commercial purposes’. This means that the Prosecution has to prove that the defendant acted in such a way for either financial gain, or for some other commercial benefit, such as the trading of some material for another.[11]
What constitutes the Federal offense of production of child pornography/sexual exploitation of children?
The production of child pornography is criminalized under Federal law as the sexual exploitation of children under Title 18, Chapter 110, Section 2251 of the US Code. If you are charged under Section 2251(a) of the US Code, the Prosecutor must prove the following elements beyond a reasonable doubt:
Employed, used, persuaded, induced, enticed, or coerced a minor to engage in sexually explicit conduct
In this first element of the offense, the Prosecutor has to prove that you did something to cause or persuade the minor to engage in sexually explicit conduct. This can be almost any kind of action – such as offering to pay a minor to do these things, or something that is much more obviously illegal, such as using threats or harassment to coerce the person into engaging in the sexually explicit conduct.
It is important to note that, under this Section, the Prosecutor does not have to prove that you knew the age of the person, it is simply enough to prove that the person was under 18 years of age at the time.
The definition of ‘sexually explicit conduct’ under Federal law is quite broad, and includes engaging in sexual intercourse or other sex acts, or simulation of them, and other acts done to sexually gratify the viewer. It also includes ‘lascivious exhibition’ of the genitals or pubic area – although what is considered lascivious is not at all a fixed concept. This is something that a jury must judge, based on a consideration of the overall content of the material or conduct. For example, a doctor asking a child to undress for a medical examination is clearly not considered an offense under this law.
Acted with the purpose of producing a visual depiction, or a live visual
This second element relates to the production of the visual depiction of the sexually explicit conduct. This means that, for a charge under this Section to succeed, the Prosecutor needs to prove not only that the minor engaged in sexually explicit conduct, but that the reason you got them to do so was to visually record it, or to visually transmit it live.
This element is satisfied no matter what kind of material is produced, provided it is a visual depiction. Things covered would include photographs, recording a film or video recording, or transmitting a live stream over the internet.
Transported, transmitted, or produced in a way to satisfy requirements for imposition of Federal law
This final element of the offense is largely a technicality – because we have a Federal system in the US, there are rules about when the states can make laws and enforce them and when the Federal government can. Basically, for the Federal government to be able to engage in prosecution of child pornography offenses, they must satisfy the requirements that would make the offense subject to Federal jurisdiction. Those requirements, however, are really quite broad – and especially considering the very connected world that we have today, and the all-pervasive nature of the internet, almost always satisfied in a case to do with distribution of child pornography.
Is it a crime to attempt to commit offenses involving child pornography?
Yes, it is. Under the United States Code, it is illegal to attempt to commit any of the offenses involving child pornography – possession, distribution, or production of it.
Under California law, it is also made illegal at a state level to attempt the offense of possession or control of child pornography.
If you have been accused of attempting to commit an offense related to child pornography, that means that the Prosecutor is alleging that you tried to commit an offense, even if you were unsuccessful or the offense was not completed.
For example, it is a crime at both the Federal and state level to attempt the offense of distribution of child pornography. This means that it could be considered illegal behavior to try to send material that constitutes child pornography to someone else, over the internet. If the Prosecution is able to show evidence of your online activity, and things such as an attempt to upload material to a site used to share illegal material, even if you are not successful in sharing any material, you might still be charged with attempting the offense.
How can I be charged with conspiring to commit a child pornography offense with people that I don’t know?
Generally speaking, it is a crime to commit, or plan to commit, almost any offense with other people – including child pornography offenses. In fact, in many cases, the law will consider it more serious to engage in illegal behavior with others, or in a group.
In the case of child pornography offenses, charges are sometimes laid where the Prosecutor alleges that someone took part in illegal behavior as part of a group, even if the members of that group have never met. Periodically, stories will appear in the media about the police or Federal authorities “busting” child pornography rings. In those cases, the authorities actually charge a number of people with offenses, and that includes offenses where they are alleged to have acted together towards a common goal – such as the sharing of child pornography. Given that a lot of this behavior happens over the internet, the people involved in this activity may never have met, or spoken to each other.
What is important to remember, however, is that even though several people might be charged with conspiring to commit the same offense, the Prosecutor must prove that every person, individually, had knowledge of the crime, and had an agreement and an intent to commit it. It is not enough, for example, for the Prosecutor to charge someone with conspiring to produce child pornography if the extent of that person’s knowledge was only that he would be sharing certain material with another person (distribution).
ARREST OR COURT SURRENDER
If, despite our best efforts, you are to be charged with a child pornography offense, you face the prospect of being arrested or having to surrender to the authorities. Your Summit Defense attorney can ensure that you are prepared for this process and help to protect you from the embarrassment of being arrested in public.
How can I avoid the humiliation of an arrest?
We know that being arrested can be an embarrassing and humiliating experience – especially if it happens in public or in front of your family, neighbors, or co-workers. If you have a Summit Defense attorney representing you, however, we can help you to avoid this happening.
When we represent you, we keep the lines of communication open with the authorities. This means that we will often know when any decision is made to file charges, and when that might happen. In those circumstances, we can usually organize surrender as an alternative to arrest. Surrender is when you – and, if you like, your attorney – go to the police station or court house to go through the charge process, without the need for an arrest.
Regardless of whether you have done anything wrong or not, it makes sense that you would want to avoid the public humiliation of an arrest – and the fact that accusations against you could be more broadly known. In the case of a matter involving child pornography, it is especially important to keep accusations as private as possible, for as long as possible. Everybody knows the stigma attached to these allegations, and organizing to surrender instead of being arrested can be an important part of the strategy to keep accusations as out of the public sphere.
Unfortunately, there will always be cases where an arrest cannot be avoided – either because you do not have any previous knowledge that you are under investigation, or because you do not yet have an attorney assisting you. If you are arrested, say nothing, and contact an attorney immediately.
What should I say to the police if I am arrested?
Nothing – you only have to tell them your name and address, and show some identification if requested. Other than that, it’s best to not say anything at all to the police – your lawyer will speak for you. If you are arrested, you or your family should contact Summit Defense Attorneys immediately – in an emergency, we’re available to help you 24 hours a day, 7 days a week.
If you are arrested, the police are required to tell you about your rights. These include your right to silence, and your right to a lawyer. These rights are important and you should take full advantage of them. If the police want to interview or question you, you should refuse to do so until you have a lawyer with you. Even if the police do not formally interview you, they will still probably ask you questions, or try to engage you in conversation about the charges – again, it’s imperative that you say nothing and do not even engage in casual conversation with the officers, or anyone at the police station.
Being charged and going through the arrest process can be a scary and intimidating process, and it’s natural for you to want to defend or explain yourself. Keep in mind, though, that nothing you say at that point is likely to stop the police from charging you. Your best chance of presenting a good defense is by remaining silent and consulting a lawyer as soon as you can. We have defended thousands of cases and it has never, ever helped someone when they’ve spoken to the police – in fact, many people have hurt their case by doing so. The early intervention of an experienced attorney from Summit Defense is by far your most effective defense strategy.
What happens once I’m charged with a child pornography offense?
Whether you are arrested or surrender in relation to child pornography charges, the next step in the process is the determination of your bail. Summit Defense believes that nothing is more important than ensuring your freedom while your case is pending.
BAIL
If I’m arrested, will I go to jail?
No, not necessarily – almost all defendants are entitled to bail.
If you are arrested, the police will initially take you into custody and to the police station for processing. Once the charging process is complete at the police station, the amount for bail will be set in accordance with the schedule that is applicable in that county. The amount required to secure your bail will depend on the number and seriousness of the charges filed against you and, once it is paid, you will be free to leave the custody of the police.
In some cases you might be released on your own recognizance. But in most child pornography cases, some bail will typically be required – and in the most serious cases, it may be set at a very high amount.
Some child pornography cases are treated very seriously, though, and it is possible that a defendant will not be able to meet the bail set at the police station because it is too high, or they are otherwise required to go before a judge to apply for bail. In those cases, one of Summit Defense’s first priorities will be to get our client out of jail on a reasonable bail, or released on their own recognizance.
What happens if I can’t meet the police bail, or if I’m refused bail at the police station?
If you are unable to secure your release from the police station following an arrest, Summit Defense Attorneys will make an application to the court to secure your release as soon as possible
If you are not able to afford the amount of bail set at the police station, we will make a bail motion to reduce the amount required to secure your bail, or to allow you to be released on your own recognizance.
In the most serious of cases, the police may not offer you the opportunity to secure your bail at the police station. This could occur in cases where the charges are very serious, or if you have a history of previous offenses. Even in these cases, however, it is still possible to secure bail – you will be taken before a judge, and he or she will consider your application for bail. Your Summit Defense attorney will present the strongest possible case in support of your bail application, and fight for your release.
If you are arrested, you should contact Summit Defense immediately so we can assist in securing your release. As highly experienced defense lawyers, we have helped hundreds of clients, and will put together the best case possible to present to the court at your bail hearing.
What factors does the court take into account when considering a bail application?
The court will consider the allegations the Prosecutor is making against you, as well as personal, individual factors, when determining a bail application. This means that the first thing that the judge will look at is the seriousness of the allegations being made against you, as well as how strong the evidence in the case appears to be. However, do not make the mistake of thinking that just because you are facing serious charges you will not be able to secure bail – that is not the case, because the judge has to consider other factors as well.
Apart from looking at the charges against you, the judge must also consider a host of other, individual factors that are very important when addressing the question of bail. It is vital to keep in mind that the court is not, at this stage, meant to be considering whether anyone is guilty or not, but mainly whether they will come to court and whether they pose any threat. So, in a typical case where child pornography charges are laid, we will urge the judge to look at things like:
Depending on the case, we will also not hesitate to attack any weaknesses in the Prosecution case against you, or unfair actions by the authorities. We will make it clear to the court that you can be trusted to attend to answer the allegations against you, and seek bail on your own recognizance or the most minimal security or bond possible.
REPUTATION MANAGEMENT
Accusations involving child pornography are serious, and can be extremely damaging to your personal reputation. We want to be ‘on the front foot’ when it comes to dealing with accusations against our clients, and believe in helping them to minimize the damage to their reputations that a child pornography allegation might involve.
How can Summit Defense help protect my reputation if I am accused of a child pornography offense?
There is an overwhelming ‘witch-hunt’ mentality when it comes to accusations of sexual misconduct involving children – and that includes allegations to do with child pornography. We know that it is often the case that these kinds of allegations stick for good and that, once made, the stain is almost impossible to remove – even if the person is later found to be not guilty. So really, but there is no choice but to be proactive – if you have an attorney from Summit Defense on your side, we will defend your matter on all fronts.
Apart from mounting a vigorous defense in court, what else can we do to defend your reputation? From our years of experience, we know that it is not only through the criminal process that accusations can be aired. A defendant must also consider the effect that any media reporting will have, as well as the possible actions of private individuals or companies that often post ‘information’ about alleged offenders on websites, purportedly in the public interest.
Firstly if, despite our efforts, charges are to be laid, we will do our best to arrange for you to avoid the publicity of an arrest. We can arrange surrender to the authorities, which is usually more private and done at a time convenient to you and your attorney. We can request that the police do not mention or publicize the defendant’s name until such time as the DA files charges. From then on, we can speak on your behalf in all forums, including in the media if necessary. Although no one can prevent the media from reporting matters of the public record, we are scrupulous about keeping a low profile in these matters.
Finally, we are alert to the many sites that publish details of sex offenders, and have been successful in having client’s details removed when cases were still pending. In all avenues, we insist on our clients receiving the full benefit of being innocent until proven guilty, and will not let your reputation be unduly tarnished.
What has Summit Defense done to preserve their client’s reputation in child pornography cases?
We have a strong record of protecting and preserving our clients reputations. This includes persuading media outlets to give our clients the benefit of the presumption of innocence, even when serious allegations are on the table.
In a recent case that Summit Defense handled, we were able to have the local media withdraw publication of our client’s names and details in relation to a report about a child pornography ring. We were alert to the fact that a newspaper in the area where our clients lived and worked had published their names and pictures in a story detailing the accusations related to the alleged ring. While the newspaper was certainly entitled to publish material on the public record, we wrote to the editor of the newspaper immediately to seek their removal from the story – you can see that letter here.
We emphasized the fact that the case so far was merely a set of accusations, outlined the very serious risk to our client’s reputations, and pointed out that our clients were entering pleas of ‘not guilty’ and may very well be exonerated.
As a result of our efforts, the newspaper withdrew the material from publication, and also removed it from their website. This action prevented the allegations against our clients from reaching a wide audience, and from damaging their reputations in their local community. It also meant that material that would otherwise be available to be searched for and found on the internet was removed.
As this case demonstrates, Summit Defense Attorneys don’t just defend their clients in the courtroom – we defend our clients to the fullest extent possible and using all of our efforts, in whatever forum necessary.
DEFENSES
We believe in strenuously defending child pornography accusations. We will get involved with your case early to try to avoid charges being filed altogether, and do what is necessary to build the best defense in your case.
Our attorneys know that every case and client is different, and that each requires an individual strategy and approach. We will take the time to evaluate your case thoroughly, make sure that you understand all of your options, and work to prepare your defense from the first day that you retain us. And even in cases where the evidence is overwhelming or you have made admissions, our attorneys know that the outcome of a case is never certain. Having an experienced Summit Defense attorney involved in your case can mean the difference between many years in prison versus a more lenient, or a non-custodial, penalty.
In this section, we will outline some of the more common defenses that are used in child pornography cases, and the circumstances in which they apply. If you are charged with a child pornography offense and want the best attorneys defending your case, you need to call Summit Defense immediately.
The prosecution doesn’t have enough evidence against me!
One of the most basic tenets of the criminal law is that any charge must be proved beyond reasonable doubt – and, that means that every element of each charge must meet that standard. Unfortunately, however, there are many cases where charges are filed but the evidence that the Prosecutor brings to court is just not up to the standard required. In those kinds of cases, we can engage several different strategies to defeat the allegations.
First, we will negotiate with the DA to have a matter disposed of at the pre-file stage if it is apparent that there is just not enough evidence to support a charge. In many cases that we have dealt with, a proper examination of the evidence has revealed serious flaws in the case – for example, the prosecution being unable to prove beyond reasonable doubt that the people depicted in the material are actually minors.
Secondly, we will expose flaws in the prosecution case and fight to have a case dismissed at the pre-trial stage where there is not sufficient evidence. If, despite our efforts to negotiate a matter, the prosecution insist on going to trial, we can seek a pre-trial evidentiary hearing where we are able to demonstrate to the judge the inadequacies in the prosecution’s case. In many matters where this occurs, we’re able to get the case dismissed before it reaches trial.
The third strategy, of course, is to take a stand at trial, revealing the flaws in the prosecution case. Our attorneys are experts at exposing the flaws in a case to a jury, raising a reasonable doubt, and achieving a ‘not guilty’ verdict. We are persuasive advocates in the courtroom, and where the evidence does not support a conviction, will not allow the jury to be swayed by the prosecution.
Unfortunately, a lack of evidence does not always stop the authorities from pursuing charges against someone. Our attorneys include an ex-police officer and ex-Distrcit Attorneys, and this experience on the other side means that we know how common it is for charges to be filed where evidence is weak. Our experience also means that we know exactly how to dismantle those cases, and we have an excellent track record of having charges withdrawn and winning trials in child pornography cases in the Bay Area – making Summit Defense Attorneys the right firm to fight your case.
I didn’t mean to download the material – it was an accident!
There are several ways in which someone might accidentally download material that contains child pornography. We all know that the internet contains an almost infinite amount of material, and that it’s often easy to be surfing the internet and end up on a website that you had no intention of going to. While such activity can be innocent in most cases, there are times when someone goes down the wrong path and accesses illegal material – sometimes without knowing it. Sometimes, child pornography has been accessed by someone via a ‘pop-up’, even when they didn’t want to – and this can leave a record on their computer.
Other ways in which someone might accidentally access or download child pornography without meaning to is through a bulk download of otherwise legal material, or through material being sent via file sharing software when they had no idea that was happening.
In any of these situations, the most important thing to keep in mind is that all offences to do with possession or distribution of child pornography require proof of intent. This is true at both the Federal and state levels. Every statute includes some language that indicates this – for example, the California Penal Code offense of possession of child pornography requires proof that the defendant “knowingly” possessed the material. So, it follows that if someone does NOT know that they had the material in their possession, or that they had accessed or downloaded it, then they cannot be found guilty.
As an example, consider a situation where you receive an email. The email address is one of your contacts, but not someone that you know particularly well. The subject line might say something innocuous, like ‘Hey, check this out!’ When you open the email, there is only a short greeting and an attachment. You click on the attachment, and the material then downloads to your computer. When you open the file, you see that it contains many several images – some of them are pornographic in nature, and some of them seem to contain children in sexually explicit poses.
You immediately delete the material from your computer, erase the files from all the drives on your computer, and delete the email. You also send an email to your contact, telling him what you just received and that is was not appropriate. Now, in this situation, you may have actually possessed child pornography – even if only for a short amount of time. However, your possession of it was completely unintentional and inadvertent. In those circumstances, you would not be found guilty of the offence.
I didn’t know the material was of children!
It is important to keep in mind that possessing, sharing, or accessing pornographic material that involves adults is generally not a crime. Rather, it is the use of minors in pornographic material that renders it illegal and the people who posses it, share it, or access it liable to criminal prosecution. In this context, however, there are certainly some cases where a defendant might access or view material where it is not clear that the people involved are children, and where they had no intention whatsoever to possess or distribute child pornography.
All of the offenses involving the possession or distribution of child pornography require that the Prosecutor prove that the defendant had some kind of knowledge of the nature of the material. For example, in the case of the Federal offense of possession of child pornography, the Prosecutor needs to prove that the defendant had specific knowledge as to the content of the material. That is, it needs to be proved that the defendant knew that the material depicted sexually explicit conduct, and also that they knew that at least one person depicted was a minor. If the Prosecutor cannot prove beyond reasonable doubt that the defendant had both of these kinds of knowledge, then the defendant must be found not guilty.
So, if the material is ambiguous or unclear as to whether a minor or an adult is being depicted, then a defense of lack of knowledge that the person/s was a minor is applicable.
For example, consider pornographic material that is packaged or marketed in a certain way. A person might go to a website wanting to purchase legal, adult pornography. While on that website, he clicks on various links to explore the material that is being offered for purchase. He eventually purchases and downloads some videos, and watches them. Some of the people depicted in the videos look relatively young, but the defendant has no reason to believe that they are minors, nor does the material mention anything to do with the people in the videos being under-age.
Several weeks later, the police come to the defendant’s home and seize his computer. Unbeknownst to the defendant, an online taskforce had discovered that the website he had purchased pornography from was distributing child pornography as well as legal, adult material. The police had shut down the website, and obtained a list of the credit card details of all of the people who had purchased questionable material from the site. Through this list, they had tracked the defendant. He is arrested and charged with possessing child pornography. But should the defendant be convicted of possessing child pornography? No – besides the fact that he had no intention to download or view such material, he had no knowledge that the material contained or depicted minors engaging in sexually explicit conduct. Without such knowledge, this defendant would have to be found ‘not guilty’.
It wasn’t me – I didn’t download child pornography!
It may seem very logical to say, but of course someone can only be convicted of possessing or distributing child pornography if they did it themselves. If you have been charged with the possession or distribution of child pornography, perhaps based on material found on your computer, but you did not do it, you have a defense. This is because the prosecution has to prove that you committed any offense “knowingly” – if you didn’t know that material was downloaded on to your computer, for example, then you cannot be guilty of the offense.
It is common for many people to let others use their computers – in many homes, a computer is in a common area such as a study or lounge room, in many offices people will share computer terminals from time to time, and there are many homes and offices where computers share a common network. Quite simply, there are many instances when you might use a computer or network that other people have used before you, and will use after you. And, in circumstances where multiple people use a single computer, it might be possible that someone else accessed or downloaded certain material. Keep in mind, though, that the authorities employ experts to engage in the forensic analysis of computers, and are able to track user details and other information, such a time-stamps.
In one case that we dealt with, a father and son were both using the same computer in their home, and child pornography had been downloaded on it. The police actually targeted both men, but we insisted on a more thorough investigation of the time of the downloads, which revealed that the material was accessed when the son was at work. This intervention meant that the son was not charged with any offenses.
Another way in which material can be unknowingly downloaded onto someone’s computer is through file sharing – perhaps a ‘trojan horse’ or a virus program. If this happens without the defendant’s knowledge, and without any intent to possess illegal material, then a defense is available.
If you have been accused of accessing child pornography on a shared computer, or through a shared network or program, and you did not do so, you should contact a lawyer immediately. At Summit Defense Attorneys, we have access to some of the best forensic computer specialists, and will make sure that your matter is properly investigated.
The authorities conducted an unlawful search!
Almost every case of child pornography will involve the authorities conducting a search of certain premises at some stage of the investigation. From there, it is likely that material will be seized and, in the case of computers especially, subject to forensic analysis. There are, however, rules in place to make sure that these searches and seizures happen within the bounds of the law. If you think that you have been subject to an illegal search or an unlawful seizure of your property, you should contact us immediately so we can take action against the authorities.
The law is clear in this area – the police and other law enforcement authorities cannot just search someone’s home or office and confiscate their property on a whim or a hunch. Generally speaking, the law requires that the authorities have ‘probable cause’ before a search is conducted and material seized. This concept of probable cause is initially enforced at the stage when the authorities apply for a search warrant – they have to present enough evidence to a judge to establish that they have probable cause to believe that there has been an offense committed, or being committed, and that there will be evidence related to that offense on the premises that they wish to search. This is not a perfect system, however – there are very many cases where the police have been improperly granted a search warrant, where the evidence presented to a judge was faulty, or where the police simply searched a person’s home or office without first obtaining a warrant!
At Summit Defense Attorneys, we are very serious about protecting your rights and making sure that the police operate within the bounds of the law. This means that we do not just look at the evidence that the prosecution provides – we do our own investigation where necessary and, most importantly, we will look into every aspect of the case, right from the start. This means making sure that everything the authorities have done is within the bounds of the law, and examining the evidence on which they were able to obtain a search warrant in the first place. If we find any defects in that evidence, or other questionable material, we will challenge the legality of the search, and seek the suppression of any evidence they may have found.
I destroyed or reported the material – the Federal defense.
The Federal legislation actually provides an affirmative defense to certain child pornography charges. That is, that it is a defense to viewing or possessing child pornography, if the defendant:
This defense protects people who might accidentally download or otherwise come into possession of child pornography, provided they either delete or destroy the material, or alter the authorities.
PENALTIES
If you are convicted of possessing, distributing, or manufacturing child pornography, you are exposed to very serious penalties – including many years in prison, and lifetime registration as a sex offender. In fact, there is a trend towards increasingly harsh penalties for child pornography offenses – in some cases, the possible penalties are almost out of all proportion to the offending behavior, such as when a person who possesses child pornography is sentenced to a longer time in prison than someone who actually physically abuses a child. To limit your exposure to such harsh outcomes, you need expert legal representation.
The penalties that are imposed if you are convicted of a child pornography offense will differ depending on whether you are charged under California or Federal laws. The penalty will also differ depending on factors such as the exact circumstances of the offense, and whether or not you have any criminal history. Further, when sentencing, the judge will take into account various personal factors. This means that the penalty that you receive if you are convicted of a child pornography offense can vary widely, depending on the case you are able to put before the judge.
To put your best case forward, you should have an experienced attorney who is able to advise you and plan your strategy right from the start of your case through until the end. Early intervention is key, and at Summit Defense, we know that there are ways of avoiding an overly harsh penalty – as the most experienced sex crime defense attorneys in the Bay Area, we will fight to avoid a conviction and, if that cannot be avoided, will achieve the most lenient penalty possible in your case.
What factors will the judge take into account when sentencing me?
Apart from the nature of the offense itself and any criminal history, in any kind of case the judge will consider the specific circumstances of the offense before passing sentence. Some of the things that the judge will consider are known as aggravating and mitigating circumstances – these are factors that might either increase (aggravate) or decrease (mitigate) the eventual sentence.
There are some common factors that occur in many child pornography cases – for example, if you voluntarily enter into a treatment program, or if there were a smaller number of images, then those would be taken into account as mitigating factors. On the other hand, if there was material that demonstrated violence towards the minors involved, that could be seen as an aggravating factor. But every case is different and every defendant is unique – an experienced attorney will best know how to put together a positive case on sentencing that brings together as many mitigating circumstances as possible, and reduces the negative effect of any aggravating circumstances.
I was abused as a child myself – will the court take that into account?
Yes, it will. When sentencing, the judge will take into account any individual characteristics of the defendant that are relevant. In cases where the defendant themselves has been sexually abused in the past, that could be relevant when considering both why they committed the present offense, and also what their prospects might be for rehabilitation or re-offending. A Summit Defense attorney will frame this kind of matter with sensitivity; help explain to the judge how previous experience of sexual abuse affected the defendant, and why that should be considered in reducing the defendant’s sentence.
If you have been accused of a child pornography offense, but were actually abused as a child yourself, it is important to realize that you are not alone – and that kind of history may actually be a very compelling explanation for your behavior. In fact, studies have shown that there is a higher prevalence of sexual abuse history among sex offenders, and an even higher correlation between suffering sexual abuse as a child and later committing sex offenses that involve children.[13]
In a recent high-profile case, a US Senate aide committed suicide after being charged with child pornography offenses. While that case had a tragic outcome, he left behind a note which provided some insight into his behavior – he explained that he had been sexually abused as a child from the age of five, and that he had never received treatment or counseling in relation to that abuse.[14] He felt that he had some kind of compulsion to view the images he did, because he identified with the children depicted.
At Summit Defense Attorneys, we believe that offenders who suffered abuse as children deserve understanding, and that treatment should be prioritized over punishment. We help clients in this position to access the best treatment and care, and also protect their interests in court. We will urge the court to treat our client with compassion and with the acknowledgement that continued treatment will benefit both the defendant and the community more than severe punishment.
What is the penalty for possession of child pornography in California?
Under California Penal Code 311.11, the offense of possession of child pornography can be charged as either a felony or a misdemeanor. In our experience, the majority of charges are filed as felonies – although this can depend on the jurisdiction in which the case is dealt with, and in some cases we are able to negotiate with the DA to ensure that less serious cases are filed as misdemeanors.
The maximum penalty for a first time misdemeanor offense is up to one year imprisonment, a $2,500 fine, or both. In the case of a felony offense, the maximum penalties include between sixteen months and three years in state prison, increased fines, or both. At Summit Defense, however, we are able to help many of our clients avoid a full-time custodial sentence in relation to a first-time offense.
If you have previously been convicted of a child pornography offense, or another relevant sex offense, then the potential penalties become more serious. With a previous conviction on record, a defendant can face two, four, or six years in state prison.
Further, there are certain circumstances that make a possession offense more serious – such as if there are a very large number of images involved, or the children depicted in the material are very young. These kinds of circumstances are known as ‘aggravating’ factors and the law says that such offenses must be treated more seriously. So, in those cases, the maximum penalty that a defendant is exposed to is between one and five years in prison. Finally, if an offense is committed using government property (such as a computer), an additional fine is imposed on top of any other penalty, of up to $2,000.
Keep in mind, however, that these are all maximum penalties, and only apply if you are convicted. Summit Defense will do everything possible to avoid a conviction. However, in cases where a conviction cannot be avoided, the assistance of an expert attorney from Summit Defense can mean that you receive a much more lenient penalty. For example, in a recent case that we handled in Santa Clara, our client was convicted of possessing hundreds of images of child pornography. We were able to put important mitigating evidence regarding his personal circumstances before the court, however, and persuaded the judge to impose a period of probation. In another recent case, our client pleaded guilty to possession of child pornographic videos that had been downloaded on to his computer. Following the negotiation of a favorable plea agreement with the DA, our client was able to serve the majority of his sentence by way of house arrest.
What is the penalty for the distribution of child pornography in California?
An offense under California Penal Code 311.1(a) for the distribution of child pornography can be filed as a misdemeanor or a felony – although these cases are usually considered more serious than possession, and almost always dealt with as felonies. The maximum penalty for the felony offense of distributing child pornography is sixteen months, two, or three years in state prison, a fine of up to $10,000, or both.
There are more serious penalties for those people who distribute child pornography for commercial purposes. Under California Penal Code 311.2(b), the maximum penalty that a defendant is exposed to is imprisonment of between two and five years, a fine of up to $100,000, or both a fine and imprisonment. Again, in the case of all of these offenses, there is an additional penalty of a fine of up to $2,000 if the offense is committed using government property.
It is important to keep in mind that many defendants who are charged with the distribution of child pornography will also be charged with the possession of child pornography. In that case, the penalties for possession of child pornography will also apply – making the total punishment that the defendant is exposed to potentially more serious. If you have been charged with distribution of child pornography, you need an experienced attorney from Summit Defense on your side to fight for the best result possible.
What is the penalty for producing/making child pornography in California?
There are not a large number of people charged with making or producing child pornography, but it is a very serious offense and any defendant is exposed to very serious penalties. Except for a very small number of cases, all charges related to the production of child pornography in California are felonies, pursuant to California Penal Code 311.4. The maximum penalties for the offenses differ based on whether the production was for a commercial purpose, and based on the age of the minor involved.
Under California Penal Code 311.4(b), wherein a minor is used in the making of child pornography and for commercial purposes, the maximum penalty is between three and eight years imprisonment. Even under California Penal Code 311.4(c), where a commercial purpose is not alleged, the maximum penalty is between sixteen months and three years imprisonment. Finally, if the minor involved was under 14 years old at the time of the offense, the law provides for a more serious penalty of imprisonment between two and six years.[15]
Are the Federal penalties for child pornography offenses more severe than the state ones?
Yes, unfortunately there is little consistency between the two jurisdictions, and the penalties at the Federal level are generally a lot more severe than at the State level. If you are subject to a Federal investigation, or charged with a Federal offense, you are exposed to the Federal sentencing guidelines – which include many years in Federal prison. Your best chance of avoiding an extremely harsh sentence is to engage an experienced attorney from Summit Defense Attorneys.
The harsh Federal sentencing regime is the main reason why, at Summit Defense, we do everything possible to keep our clients out of the Federal system. If, despite our best efforts, you are charged and convicted in the Federal system, we will present the best case possible to persuade the judge to sentence you outside of the Federal sentencing guidelines.
What are the Federal sentencing guidelines, and how do they work in relation to child pornography offenses?
At the Federal level, the government has created sentencing guidelines that are applicable to virtually every kind of criminal offense dealt with in the Federal courts, including Federal child pornography offenses. Sentencing guidelines – despite what you may have heard – are not mandatory sentences. So, it is not compulsory for a judge to follow them when imposing a sentence, but they are required to consider them and give appropriate reasons if they do not follow them.
Basically, the guidelines do restrict judges in some ways, and make a sentence of imprisonment all but mandatory in Federal child pornography offenses. If you are facing sentencing in Federal court, then you need a skilled attorney from Summit Defense representing you – in appropriate cases, we will work with the Prosecutor from the start to negotiate favorable plea bargains that can mean the difference between being sentenced according to the guidelines, versus an agreement where we can apply for the judge to grant what is known as a ‘downward variance’. We can also argue for alternatives to full-time imprisonment in some cases, such as serving all or part of a sentence under house arrest.
In brief, the Federal sentencing guidelines work by setting a sentence range for each offense and offender. This is done by combining both the defendant’s criminal history and certain information about the offense – known as the ‘criminal history category’ and the ‘offense score’, respectively. When it comes to calculating an offense score, each offense is given a kind of base point-score. The judge is required to refer to that base score, and then add or subtract from it depending on other factors mentioned in the guidelines. To determine a criminal history category, points are accumulated based on a set formula and depending on the defendant’s criminal history.
In each case, the judge has to follow the guidelines to calculate the offense score, and figure out which criminal history category the defendant is in. Once those are calculated, the judge uses a Sentencing Table to determine what the appropriate sentence range is.
Basically, what all of this means is that a judge must adhere to a certain, relatively narrow, sentence range in every case. The application of the Federal guidelines makes for potentially much harsher sentences than in the state system – almost all defendants in the Federal system are exposed to several years in prison and, in the most serious cases, upwards of ten years or in prison.
What are the Federal penalties for child pornography offenses?
As we’ve explained above, the Federal guidelines involve a detailed calculation of the sentencing range for each offense. This means that, depending on the offense and the defendant’s criminal history, there is a different applicable sentencing range in every case. Besides the guidelines, the legislation for each offense also provides a maximum penalty, which is ordinarily far above the sentencing range that would be found in the guidelines.
The sentencing guidelines make it difficult to state briefly what the exact penalties are for each kind of child pornography offense, however, an outline of the minimum range of sentences applicable for each base offense and for a first-time offender is as follows:
Remember, however, that a base offense score only applies when there are no other factors that either increase or decrease the score – so, the base score is almost never the end of the story. Most cases will involve at least some factors that serve to further increase the sentencing range – for example, use of a computer to commit the offense, and a larger number of images, will both increase the sentencing range.
Overall, Federal sentencing is a complex process, and no one should enter into it without an expert attorney by their side. At Summit Defense, we have defended many cases in the Federal system and we are your best chance of making sure that you do not fall prey to an overly harsh sentence that can result from the strict imposition of the sentencing guidelines.
How can Summit Defense help me to avoid an overly harsh sentence based on the Federal sentencing guidelines?
Despite the existence of the Federal sentencing guidelines, it is possible to receive a sentence that falls outside of – and below – the guideline. To do this, however, takes significant expertise in this area of law, which is why a Summit Defense attorney is best placed to assist you.
While the Federal guidelines are not mandatory, it does take a well-prepared case and careful persuasion to convince the judge to step outside of the sentencing guidelines and grant a downward variance. Further, an experienced attorney will likely have already negotiated with the Prosecutor to obtain their agreement to the defendant requesting a downward variance.
In fact, it is well-known that, because of the Federal sentencing guidelines, those defendants who do not have a good lawyer are the most disadvantaged – basically, that the very existence of the guidelines has changed the way that sentencing occurs at the Federal level, and that it is now imperative to have a skilled defense attorney.[19]
It is also true that there is some evidence of a growing dissatisfaction with the guidelines amongst some judges, but the guidelines are certainly a long way off from being abolished or insignificant. Despite discussion and debate on the topic for several years, the most recent version of the guidelines still contains the same harsh penalties in relation to child pornography offenses. And that is why defendants still need a vigorous defense lawyer on their side.
One of the main reasons that Federal judges have given for resisting the guidelines in some child pornography cases is that they produce unjust results. That is, many judges are persuaded that long prison sentences are not effective in treating or preventing re-offending in the case of many people charged with possession of child pornography.[20] Finally, the US Sentencing Commission has found that the offense characteristics that the guidelines urge the judges to take into account when sentencing “may not accurately reflect the seriousness of an offender’s conduct, nor fairly account for differing degrees of offender dangerousness” and that “[the] current guidelines can at times under-represent and at times over-represent the seriousness of an offender’s conduct and the danger an offender possesses.”[21]
These are just some of the controversies surrounding the use of guidelines in Federal sentencing for child pornography offenses – but this area is far from settled, and the continued existence of the guidelines mean that judges are still constrained by them, even if they might not agree with them in every case.
How has Summit Defense helped clients facing sentencing for Federal offenses?
We know that whether or not a defendant can request a downward variance in a Federal matter can depend on the terms of any plea agreement with the prosecution – which is why early intervention is so important. In a recent case, our client was being sentenced for possession of child pornography. We had negotiated a plea agreement with the US Attorney, which included a clear statement from the prosecution that they agreed that the defendant could request a downward variance. This was based on our submission that the material was relatively benign, and also because our client had entered a treatment program prior to being sentenced. In that matter, our client received a much more lenient penalty than he otherwise would have.
We were successful in this case because we developed a strategy with our client, which recognized the potential effect of the sentencing guidelines and so emphasized negotiation with the Prosecutor to enable us to present the best possible case to the court, and therefore protect our client’s interests.
What other consequences can occur as a result of being convicted of a child pornography offense?
A conviction for any child pornography offense, either at the state or Federal level, will mean that you have to register as a sex offender. This can mean that your personal information, and information related to the offense, are publically available – which has a long term impact on things such as your employment prospects, your ability to rent a place to live, and the immigration status of non-citizens. At Summit Defense Attorneys, we recognize how debilitating lifetime registration is, which is why we do everything possible to help you avoid conviction and having to register as a sex offender.
If you accused of a child pornography offense and are facing potential lifetime registration, you should get the help of an attorney who is experienced in the area. And if you are convicted of an offense and required to register, you should be fully aware of your obligations – and also of the fact that the law does prevent other people from harassing you. We provide extensive information on sex offender registration here .
What consequences does registration as a sex offender have?
Registration means that you keep the authorities updated on your contact and identity details. Sex offender registration has been around for decades, however, it is only in more recent times that the information of offenders was made available to the public via the internet. In California, a law known as ‘Megan’s Law’ dictates that certain information about some registered sex offenders must be posted on the internet, on what is known as Megan’s List. This online listing will usually record a person’s name, the details of their offense and sentence, and where they live.
Not all offenders have to have their information published online, however. We provide more detailed information about registration, and also ways in which you can apply to have your name removed from Megan’s List, or from the obligation to register altogether, in this section of our website.
[1] See, for example, California Penal Code Section 311.11
[2] See, for example, California Penal Code Section 311.1(a).
[3] Judicial Council of California Criminal Jury Instructions 1060
[4] California Penal Code Section 311(a).
[5] 18 United States Code 1466A(a)(2) and (b)(2).
[6] Judicial Council of California Criminal Jury Instructions, Instruction 1141.
[7] Judicial Council of California Criminal Jury Instructions, Instruction 1141.
[8] California Penal Code 311(a).
[9] California Penal Code 311(3).
[10] See California Penal Code 311.3(b).
[11] Judicial Council of California Criminal Jury Instructions, Instruction 1144 reads, in part, “Use for commercial purposes includes intending to trade the matter depicting sexual conduct for a commercial purpose at some point in the future. A commercial purpose does not have to include financial gain.”
[12] 18 USC 1466A(e).
[13] See, for example, Ashley F. Jespersen, Martin L. Lalumière, and Michael C. Seto, “Sexual Abuse History Among Adult Sex Offenders and Non-Sex Offenders: A Meta-Analysis”, Child Abuse and Neglect: The International Journal, (2009), Vol. 33, No. 3, p.179-192.
[14]
[15] Pursuant to California Penal Code Section 647.6(2).
[16] 2013 Federal Sentencing Guidelines Manual, 2G2.2; and 2013 Guidelines Manual, Chapter Five, Part A.
[17] 2013 Federal Sentencing Guidelines Manual, 2G2.2; and 2013 Guidelines Manual, Chapter Five, Part A.
[18] 2013 Federal Sentencing Guidelines Manual, 2G2.1; and 2013 Guidelines Manual, Chapter Five, Part A.
[19] See Joseph S. Hall, ‘Guided to Injustice? The Effect of the Sentencing Guidelines on Indigent Defendants and Public Defense’, (Fall 1999) American Criminal Law Review.
[20] See, for example, Nicole Flatow, ‘Judge Battles Child Pornography Mandatory Minimum Sentence He Considers Unjust’, (09/27/2013), Think Progress, accessed at http://thinkprogress.org/justice/2013/09/27/2692801/judges-battle-over-child-pornography-mandatory-minimum-sentence/
[21] Douglas A. Berman, ‘DOJ agrees with US Sentencing Commission that child porn guidelines are badly broken’, (March 7, 2013), Sentencing Law and Policy blog, accessed at http://sentencing.typepad.com/sentencing_law_and_policy/2013/03/doj-agrees-with-us-sentencing-commission-that-child-porn-guidelines-are-badly-broken-.html
