Our Former Prosecutors Are Ready To Defend Your Child Pornography Offense in Federal Court
Federal child pornography charges are definitely on the rise throughout the United States. There are a number of factors for the increase in individuals charged with possession and distribution of photographs or videos depicting children in sexually exploitive activities. One of the biggest reasons for so many child pornography cases is enhancements in technology for detecting uploaded, storing and/or sharing of these materials. If you were arrested by The Federal Bureau of Investigation (“FBI”), the United States Attorney, or another government agency for involvement in a child pornography offense, you certainly need representation from the best federal criminal lawyer you can afford.
We are the Law Offices of Jonathan F. Marshall, a highly accomplished team of defense attorneys with the skill to help you, including:
- Over 200 years of combined experience handling child pornography and associated criminal charges
- Former prosecutors that have served at the highest levels throughout New Jersey
- Certified Criminal Trial Attorneys
- A track record of success that spans several decades.
To obtain a free consultation with an attorney who is skilled in federal criminal defense of child pornography charges, contact our office at 877-450-8301. Jonathan F. Marshall, Esq., or another talented member of our staff is prepared to provide a free consultation immediately.
Federal Child Pornography Offenses
There are several child pornography violations that can result in an individual facing federal charges. While the primary offenses in this context are child pornography possession and distribution of photographs, videos, or other images depicting a child engaging in sexual activities, there are several laws that target this type of criminal conduct. You may be facing one or more of these charges, including:
- 18 U.S.C. § 2251 – Sexual exploitation of children (Production of child pornography).
- 18 U.S.C. § 2251A – Selling and buying of children.
- 18 U.S.C. § 2252 – Certain activities relating to material involving the sexual exploitation of minors (Possession, distribution and receipt of child pornography).
- 18 U.S.C. § 2252A – Certain activities relating to material constituting or containing child pornography.
- 18 U.S.C. § 2256 – Definitions for chapter.
- 18 U.S.C. § 2260 – Production of sexually explicit depictions of a minor for importation into the United States.
Each of these violations calls for a specific range of punishment that coincides with the offense level assigned by the Federal Sentencing Guide. The levels range from 1 to 43 in the guide with escalating punishment as the offense level gets higher. There are also upward and downward adjustments that can apply depending on the circumstances surrounding a federal child pornography offense. The resulting numerical score coincides with a recommended term of probation or imprisonment contained in the Federal Sentencing Table.
Federal Sentencing Table
There are numerous base offense levels that can apply when someone is charged with a federal child porn offense. You will have to refer to the particular charge that resulted in your arrest to determine the base offense level that applies under the Federal Sentencing Guide. As previously stated, there may also be enhancements or upward adjustments, as well as subtractions, that apply. Below are the base offense levels that apply when one of the previously mentioned federal child pornography charges arise.
|Statute||Nature of Conduct||Base Offense Level|
|18 U.S.C. § 2251||Sexual exploitation of children||22|
|18 U.S.C. § 2251A||Selling and buying of children||22|
|18 U.S.C. § 2252||Certain activities relating to material involving the sexual exploitation of minors||22|
|18 U.S.C. § 2252 (a)(4)||Possession of child pornography||18|
|18 U.S.C. § 2252A||Certain activities relating to material constituting or containing child pornography.||22|
|18 U.S.C. § 2252A(a)(5)||Possession of child pornography||18|
|18 U.S.C. § 2252A (a)(7)||Production of a modified depiction of child pornography||18|
|18 U.S.C. § 2260||Production of sexually explicit depictions of a minor for importation into the United States||22|
Special Characteristics Resulting In Upward or Downward Adjustment to an Offense Level
There are numerous adjustments that can increase or decrease the offense level of a defendant. The following are some of the frequently encountered adjustments when someone is facing a child pornography offense in Federal District Court:
- If the defendant has a base offense level of 22 and their conduct was limited to the receipt or solicitation of material, without any intention to distribute or traffic the material, decrease by 2 levels.
- If the material involved a prepubescent minor or a minor who had not attained the age of 12 years, increase by 2 levels.
- If the offense involved distribution for pecuniary gain, increase by at least 5 levels.
- If the defendant distributed materials in exchange for money or other consideration, but without pecuniary gain, increase by 5 levels.
- If the offense involved distribution to a minor, increase by 5 levels.
- If the offense involved distribution to a minor that was intended to persuade, induce, entice, or coerce the minor to engage in any illegal activity, increase by 6 levels.
- If the offense involved distribution to a minor and was intended to persuade, induce, entice, coerce, or facilitate the travel of the minor to engage in prohibited sexual conduct (i.e. luring of a minor), increase by 7 levels.
- If the defendant knowingly engaged in distribution, other than distribution that has previously been described, increase by 2 levels.
- If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, or abuse or exploitation of an infant or toddler, increase by 4 levels.
- If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels.
- If the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material, increase by 2 levels.
- If the offense involved 10 to 150 images, increase by 2 levels.
- If the offense involved 150 to 300 images, increase by 3 levels.
- If the offense involved 300 to 600 images, increase by 4 levels.
- If the offense involved more than 600 images, increase by 5 levels.
It should be noted that each video file is equivalent to 75 images under the Federal Sentencing Guidelines. For example, if an individual possessed 10 video files, the equivalent would be possessing 750 images and the offense level would increase by 5 levels.
Acceptance of Responsibility. The Sentencing Guidelines Manual also outlines downward adjustments that apply in every federal criminal case provided the defendant accepts responsibility for his or her child pornography conduct. The related adjustments are as follows:
- Decrease by 2 levels if the defendant clearly accepts responsibility for his or her actions.
- If the defendant qualifies for the above-mentioned decrease and their offense level is greater than 16, they may also receive an additional decrease by 1 level for timely notifying the government of an intention to enter a guilty plea.
There are a number of considerations for the Assistant United States Attorney and/or the Court in determining whether a defendant qualifies for a 2 level adjustment including truthfulness with law enforcement, the status of restitution, voluntary termination of conduct, surrender, the assistance provided to authorities, rehabilitation and timeliness of acceptance.
Criminal History Category
The sentencing Federal Sentencing Table set forth below assigns a range of penalties that hinges on both offense level and prior criminal history. There are six (6) categories of criminal history that can apply to someone arrested and convicted for possessing, distributing or otherwise committing some form of child pornography offense. The criminal history categories range from I to IV. An individual falls in Category I if they have 0-1 criminal history points, Category II for 3 or4 points, Category III for 4-6 points, Category IV for 7-9 points, Category V for 10-12 points and Category VI for 13 or more points. The Federal Sentencing Manual assigns criminal history points as follows:
- Add 3 points for each prior sentence of imprisonment exceeding one year and one month.
- Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
- Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection.
- Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
- Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was treated as a single sentence, up to a total of 3 points for this subsection.
The FBI’s National Crime Information Center is responsible for conducting the criminal records search used to calculate a defendant’s criminal history category. It is also important to note that juvenile adjudications and prior criminal convictions are also taken into consideration.
Federal Sentencing Table
Zone and Corresponding Sentencing Options
The sentencing table is also divided into Zones A, B, C & D. Each zone allows for the molding of punishment consistent with the penalty zone in which an offense level falls. Please note that a judge imposing a sentence for child pornography must apply the penalties triggered within a zone unless a departure or variance from the federal guidelines is granted. The headings below outline what is permitted in terms of sentencing within each zone.
Zone A. A defendant may be sentenced to probation-only, probation with confinement (i.e. intermittent confinement, community confinement, or home detention), a split-sentence (i.e. probation after a period of imprisonment) or imprisonment if they fall within Zone A of the Sentencing Table.
Zone B. The range of penalties that may be imposed for someone within Zone B includes imprisonment of at least one month plus supervised release with a condition that substitutes community confinement or home detention for imprisonment, or a period of imprisonment
Zone C. A Federal Judge may sentence a child pornography defendant falling within Zone C to imprisonment of at least half of the minimum term plus supervised release with a condition that substitutes community confinement or home detention for imprisonment, or imprisonment.
Zone D. The court must impose a period of imprisonment for someone in Zone D absent a departure from the Federal Guidelines.
Federal Sentencing Guidelines Are Persuasive But Not Mandatory
In 2005, The United States Supreme Court ruled in United States v. Booker, that the sentencing guidelines are not mandatory and that a federal judge is permitted to use their own judgment to fashion a sentence outside the guideline range. The court is supposed to use the guide as a persuasive source for appropriate punishment but always consider the factors set forth in 18 U.S.C. § 3553a to formulate a sentence that is just and equitable. If the aggravating or mitigating circumstances encountered in a child pornography or other federal case are inadequately taken into consideration by the Federal Sentencing Guide, then a court can make a departure from the punishment contained in the guide.
Defending a Federal Child Pornography Charge
It is pivotal that a multifaceted approach is taken to defending a federal child pornography charge since every case is unique. The attorneys at the Law Offices of Jonathan F. Marshall know exactly how to dissect this offense as demonstrated by our decades of success defending individuals charged by the government with possession, production, and distribution of sexual exploitive materials. Our defense frequently focuses on:
Forensic Analysis. Our computer forensic experts work to uncovering all facts and theories to refute the claims of the FBI, US Attorneys Office, and other law enforcement involved in your matter. A forensic expert will pinpoint the date and time files were downloaded, what materials were involved, as well as any other relevant evidence that may form a basis to attack your offense(s). In some cases, computer files have been deleted or destroyed and a qualified forensic expert can help demonstrate that the images were acquired incidentally or accidentally based on how quickly they were discarded or destroyed by the accused. It is also possible for a forensic expert to conduct a search containing key terms that demonstrate that the individual was not searching specifically for child porn but rather for legal adult pornography. Indeed, it is possible for child pornography to be contained in files with adult porn that was downloaded off the internet.
Police Misconduct. A defendant enjoys a host of rights and constitutional protections. When police and members of law enforcement violate these rights, evidence may be suppressed and barred from use in the prosecution of charges. . For example, if evidence surfaced as a result of a warrantless search and no valid exception to the warrant requirement can be presented by the government, there has been a Fourth Amendment violation that renders the evidence inadmissible. This occurrence usually destroys the government’s case since it is typically possible to prove a federal or state child pornography offense without photos, images, or videos of a prohibited nature. It is also possible for Miranda to come into play where a confession has been improperly extracted.
Lack of Knowledge or Intent. A fundamental element that must be established by the prosecution in every federal child pornography is knowing or purposeful conduct. The accused must have a conscious object to possess, distribute or produce images, files, videos, or other improper porn in order to be guilty. This area of defense is something our criminal defense lawyers explore exhaustively in hopes of uncovering evidence that supports the fact that the files were acquired unintentionally (e.g. through a peer-to-peer network or another source). It is possible that the illicit files that were created, downloaded or stored, were done by a third party who also had access to a device so that the child pornography was unknowingly possessed.
Inflated Number of Images or Videos. The number of images involved in a child pornography case is highly relevant under Federal Sentencing Guidelines. However, it is entirely possible for the FBI or another agency to miscalculate these figures, something that can have disastrous consequences in a case. Our accomplished attorneys ensure that these totals are minimized so that the very best opportunity for a favorable outcome exists.
Distribution or Production Did Not Occur. The penalties for distributing or producing child pornography are clearly more significant than possession. Federal prosecutors are well aware of this fact and attempt to make a case for distribution/production wherever there is an opportunity. The team at our firm will aggressively pursue any facts that contradict or otherwise undermine claims of this nature so that the consequences in a child pornography case.
Please understand that the prior headings are only a few areas of possible defense in your case. The Law Offices of Jonathan F. Marshall will analyze the facts in your matter so that we can present each and every factual and legal defense available.
Federal Child Pornography Attorneys in New Jersey
It is apparent from this article that child pornography charges are exceptionally serious when they are being pursued at the federal level. There is always the potential for imprisonment and collateral consequences that are life-altering. This is precisely why you need to hire the very best criminal attorney to defend your offense. The defense team at the Law Offices of Jonathan F. Marshall has the experience and commitment required to preserve your freedom. To obtain a free consultation with a New Jersey criminal attorney on our staff, call 877-534-7338. A lawyer who has been defending clients charged with federal child pornography is ready to help you immediately.
Federal Child Pornography Frequently Asked Questions
Federal Child Pornography
Federal law defines child pornography as any “visual depiction” involving a minor engaging in “sexually explicit conduct”.
A depiction is “sexually explicit” if it includes sexual activity or vulgar or provocative displays of genitals. A nude image or video of a child is not child porn unless it is “sexually explicit” in nature.
An item is a visual depiction if it is a photograph, video, or another form of data that is capable of conversion to a visual image.
Federal child pornography cases can arise in a number of ways. Typically, they will be the result of an investigation conducted by the FBI or Homeland Security. Federal agents utilize various investigative techniques to discover persons in possession or distributing child porn. In addition, private entities like Google, Dropbox, Yahoo, and others can report incidents where they have discovered child pornography on a computer drive, email account, or another facility. You may have been targeted as the result of:
- Pretending to be a minor in a chat room or on social media attempting to make contact with a minor;
- Online discussions with individuals purportedly interested in obtaining or exchanging child pornography, or meeting with minors;
- Inspection of your data by an internet provider;
- Searches of electronic devices while at international borders (including airports) without a warrant;
- Downloading prohibited child porn files onto personal devices through a peer-to-peer network like Vuze, Kazaa, LimeWire or BitTorrent,
- Creating illegitimate websites or taking control of legitimate websites that offer distribution of child porn; or
- Obtaining and executing a search warrant of the electronic devices within the home.
Individuals are often the subject of a child porn investigation without knowledge. This is usually the case with something drawing the attention to federal law enforcement or the National Center for Missing or Exploited Children.
Distributing child pornography is sentenced more harshly than simple possession so it is important to understand how the law differentiates these activities. The Federal Criminal Code defines distribution as knowingly conveying, transporting, or shipping child pornography by means of interstate commerce. An individual commits this conduct if they mail, email, send, giving away, or sell sexually explicit materials involving a minor. It is should also be emphasized that participation in a file-sharing network constitutes distribution since participants in a peer-to-peer platform are capable of viewing, downloading, or otherwise obtaining child pornography stored on a participant’s drive. Knowledge that your files are being viewed, copied, or otherwise duplicated is not required but simply that you made your files accessible to others. As long as the federal authorities can prove that this has occurred, you are subject to prosecution for distribution of child pornography.
The determinative factor in terms of jurisdiction isn’t who arrested you on a child pornography charge since federal authorities intervene in any case where sexually explicit materials depicting a child are transported between states. For example, if an individual in New Jersey meets someone in a chat room and downloads a file that originated from that person in California then a federal violation has been committed and the United States Attorney may exercise jurisdiction. Another way for a federal child pornography offense to arise is by storing a file containing prohibited materials on a device or facility in another state.
All individuals convicted of a federal child porn violation are subjected to sex offender registration. A condition of probation, parole, or release is always that the defendant adhere to applicable sex offender registration laws such as Megan’s Law.
In 2006, the federal government passed the Sex Offender Registration and Notification Act (SORNA) that requires registration by those convicted of certain crimes, including child pornography. This law mandates that offenders “register and maintain current information in each jurisdiction in which he is convicted, employed, resides, or attends school, and also report on a periodic basis to the local authorities responsible for monitoring registered sex offenders.”
If you are charged with receipt or possession of child porn, you will likely be identified as a “Tier I” offender under this law. “Tier I” offenders pose a low risk to society and are required to register for 15 years. The Act identifies those who produce or distribute child pornography as a “Tier II” offender. “Tier II” offenders must register for 25 years since they pose a moderate risk to society.
Failure to register as required by the Act results in an additional offense that has a statutory maximum term of imprisonment of 10 years.
There are a wide variety of child pornography offenses that someone can face under the Code of Federal Regulation. The starting point in this regard is the possession or transport of child pornography. Then there are more serious federal violations under this heading such as the production of child pornography and distribution of child pornography.
A base offense level is designated in the Federal Sentencing Manual for each individual variety of child pornography offense. For example, possession of child pornography is assigned an offense level of 18. There is a commensurate range of penalties that apply to each offense level or score in accordance with the Federal Sentencing Table.
The penalties for child pornography are always serious at the federal level and typically trigger some period of incarceration in prison. Child pornography possession with an offense level of 18 carries 27-33 months in federal prison. The period of imprisonment increases from here for child pornography charges. For more information on how penalties are determined, please consult our practice page for Federal Child Pornography Charges.