Federal prosecutors are prosecuting child pornography offenses at an astounding rate both here in the Northern District of Texas and throughout the country.
Because of Broden & Micklesen’s reputation as one of the preeminent federal criminal defense firms in the United States, we were recently hired to represent the husband of an FBI agent who had been charged in federal court with distribution of child pornography. While we often have to aggressively take on federal law enforcement agents in court, it was flattering that, when one of their own was in trouble, they turned to our firm. The case of the agent’s husband is typical of how many child pornography cases usually arise and how they are prosecuted.
Child pornography is defined in the United States Code as meaning: 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.
In our experience, many child pornography cases do ultimately wind up in a guilty plea given that the person will often have admitted to the offense at the time their computer is seized. Nevertheless, this should only come after an experienced lawyer fully evaluates the case. Moreover, if a person is even considering pleading guilty to a child pornography offense in federal court, it is imperative that the person’s attorney understands the federal sentencing guidelines inside and out. The federal sentencing guidelines, although advisory, attempt to guide judges in setting sentences. Unfortunately, over the past decade, the recommended imprisonment ranges for child pornography offenses have skyrocketed as a result of politicians attempting to curry favor with the public.
It has gotten so ridiculous that many times a person who downloads child pornography and makes it available with a file sharing program actually faces a much harsher sentence than a person actually abuses a child. In a recent case, based upon the number of images on his computer and other factors, the sentencing guidelines for a client we represented ,who was charged with distribution of child pornography through a file sharing program ,actually faced 151-188 months in prison. We filed a sentencing memorandum, attempting to show the judge how dramatically the guidelines for these offense have been increased over the years by showing what sentence the guidelines would have called for over the past decade:
| 1987-11/1990 | 12-18 months |
| 11/1990-11/1996 | 21-27 months |
| 11/1996-11/2000 | 41-51 months |
| 11/2000-4/2003 | 70-87 months |
| 4/2003-11/2004 | 87-108 months |
| 11/2004-pres. | 151-188 months |
Likewise, we pointed out that, had the client actually contacted a twelve year-old girl over the Internet, convinced her to meet him, and then the two engaged in repeated sexual acts, the client’s guidelines would only be 70-87 months- less than half of what he was facing for having images of child pornography on his computer. We even pointed out, that under the sentencing guidelines, our client faced the same sentence as a defendant in a reported case who had paid $20 to have a mother hold down her nine year-old child while the defendant raped the young girl twice a week for two years.
Read the full SENTENCING MEMORANDUM.
In more than in any other type of case, judges are ignoring the sentencing guidelines in child pornography cases. Indeed, recent statistics show that judges in approximately 50 percent of the cases are imposing sentences in child pornography cases lower than provided for by the sentencing guidelines (although recall that, in distribution cases, there is a mandatary minimum sentence of five years). In one case, the judge wrote:
“The guidelines for child exploitation offenses were not developed using an empirical approach by the Sentencing Commission, but rather were mainly promulgated in response to statutory directives. Specifically, the Protect Act directly amended guideline 2G2.2 by amending the guideline enhancements for specific offense characteristics. These modifications do not appear to be based on any sort of empirical data, and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses.”
The bottom line is that Congress has truly gone mad in increasing the penalties in child pornography cases. Therefore, if you find yourself charged in federal court with a child pornography offense, you must have a skilled attorney that knows how to defend these cases and who knows how to “deconstrtuct” the sentencing guidelines in these type of cases. Even if you have to go outside the district in which you are charged, you owe it to yourself to find an attorney who is an expert in this area. At the end of the day, it could save you from spending over a decade of your life in prison!
If you are charged with a child pornography offense, we urge you to call Clint Broden or Mick Mickelsen and we will consult with you about your case at no charge.
