Our firm has assisted many clients facing child pornography charges and sexual exploitation offenses in federal courts across Oklahoma, including the Western District of Oklahoma, the Northern District of Oklahoma, and the Eastern District of Oklahoma.
Many of our clients facing federal investigation or indictment in federal court contact us as soon as they are contacted by the FBI or other federal law enforcement agency. These initial contacts with federal law enforcement often follow the federal agency acting upon a search warrant of our client’s home, business, and/or computers. In some instances, if we are contacted early enough, we can present information to the government that results in prosecutors declining to file charges or an indictment. In other instances, we have been able to convince federal prosecutors to seek a Federal Information, instead of an Indictment, as the charging document, which has assisted clients in obtaining pretrial release (remaining out of custody), while their case in pending.
Many federal child pornography cases hinge on the legality of search warrants, i.e. whether or not the search warrant in your federal case was obtained legally or whether or not the search warrant was executed legally. Whenever we can identify a violation of a client’s constitutional rights, we will file a motion to suppress seeking to exclude evidence obtained wrongfully in the prosecution’s case. A successful motion to suppress in a federal child pornography case may result in exclusion of all the government’s evidence, i.e. the government may not have any evidence in order to continue your child pornography prosecution.
Another important aspect of evaluating the federal government’s investigation in a child pornography case is whether or not your rights were violated in the course of any law enforcement contact, interrogation and/or confession. Our Oklahoma federal criminal defense attorneys will seek to suppress your confession and/or evidence obtained during the course of your child pornography investigation, if it appears your rights were violated in the process.
In all federal prosecutions the government relies in part on your federal criminal defense attorney’s ability to provide the “rest of the story” or give information in your defense to mitigate the circumstance and or support your innocence. These federal criminal defense attorney tools are used in every child pornography case we defend. We seek to prove your innocence or mitigate the circumstance for every client we have the privilege of defending. We seek dismissal or the best outcome for our clients facing federal child pornography charges by evaluating the evidence presented by the prosecution, learning about your side of the story, and through our own internal investigation. Our investigate will work with you and your federal child pornography defense attorney to identify the most compelling evidence available to fight your case or seek the best outcome possible.
We are proud to be Your Fierce Advocates® and stand by our dedication to seek dismissal or the best possible outcome in every case we defend. We have successfully represented clients facing federal criminal cases across the Midwest. However, our firm is based in Oklahoma and we primarily litigate cases in the Western District of Oklahoma, the Northern District of Oklahoma, and the Eastern District of Oklahoma.
Federal Child Pornography Charges
Federal law defines child pornography as any “visual depiction” of a minor engaging in 1) sexually; 2) explicit; and 3) conduct. Federal law defines visual depiction as either pictures or videos. Under federal law a minor is any person under the age of 18. “sexually explicit conduct” is slightly harder to define. However, sexually explicit conduct for federal child pornography purposes includes any sexual activity, including intercourse, masturbation, and “lascivious exhibition” of the private or pubic area of any person.
Nudity alone is not sufficient to meet the “sexually explicit conduct” definition. The nudity must be sexual or sexually suggestive in nature. In many cases the nature of the images plays a serious role in how the content is defined any may present a defense in your federal child pornography case.
Federal law, 18 U.S.C. §2252, makes it illegal to produce, distribute, possess, or receive child pornography. Additionally, merely searching for child pornography and then viewing images that meet the definition of child pornography is a federal crime as well. It does not matter, if you download, destroy, or delete the images. The fact of observing the images or having them on your electronic device is sufficient under the statute to be in violation of federal child pornography laws.
Federal Child Pornography Punishment
The punishment range for federal child pornography convictions is substantial. Anyone convicted of knowingly possession child pornography can be sentenced up to 10 years in federal prison. Possession of child pornography depicting a minor under 12 years of age carries up to 20 years in federal prison.
Distribution or receiving child pornography carries a harsher sentence than simple knowing possession of child pornography. The punishment range for receiving or distribution of child pornography is five years to 20 years in federal prison.
The sentencing ranges indicated above do not take into consideration adjustments or criminal history categories, which may result in being subject to a higher advisory sentencing guideline range on child pornography charges. Additionally, you will be required to register as a sex offender, if you are convicted of any child pornography offense in federal court.
We have covered distribution and possession of child pornography. But how is production of child pornography addressed under federal law?
Sexual Exploitation of Children
The allegation of production of child pornography is covered by “sexual exploitation of children” as a separate federal crime. Sexual exploitation is defined at 18 U.S.C. §2251 and is defined as an attempt to induce, persuade, or entire a minor to engage in a sexual act for the purpose of creating a video, picture, or other image. As is the case with federal child pornography crimes, sexual exploitation of a minor means anyone under the age of 18 years of age.
It does not matter if the conduct occurred outside of the United States. In order to be prosecuted for sexual exploitation of a minor for conduct outside the country, the federal prosecutors must show that you intended to send or make the content available to persons within the United States.
Federal Sexual Exploitation Punishment
The punishment range for sexual exploitation of a minor is far more sever than the punishment for possession or distribution of child pornography. Federal sexual exploitation carries a “mandatory minimum” sentence, which means the Court is bound to give you at least 15 years in federal prison and up to 30 years in federal prison.
The specific sentence you would receive if convicted of sexual exploitation of a minor is impacted by a number of sentencing factors, including your criminal history, which the federal judge in you case will use to determine the advisory federal sentencing guideline range in your case.
Federal Sentencing in Child Pornography Cases
The sentence in any federal prosecution is determined by the Court, not agreement of the parties. In federal child pornography and sexual exploitation cases the federal judge decides the sentence. In the federal sentencing process, it is crucial to understand that if your federal child pornography defense attorney can obtain a superseding indictment for less serious charges or fewer charges, it may greatly decrease the punishment you will face in your case.
You and your federal child pornography defense attorney will evaluate how to best proceed on sentencing in your case if you are unable to obtain a dismissal of your charges or if went to trial and were convicted. In either case, your defense attorney will evaluate and potentially present arguments to address the Presentence Investigation Report (PSR) drafted by US Probation. The Court’s decision on what adjustments will and will not apply directly impacts the advisory sentencing guideline range that the Court will determine before deciding the sentencing in your case.
In addition to fighting for the best possible advisory sentencing guideline range, your federal child pornography defense attorney will draft and submit a sentencing memorandum addressing the sentencing factors in favor of your receiving a less harsh sentence. The Court is required to evaluate the Sentencing Factors laid out in 18 U.S.C. §3553(A). Our federal child pornography defense attorneys have assisted many clients in obtaining more favorable sentences by presenting compelling arguments under the “3553(A) Factors.”
Defenses to Child Pornography Charges
Defending someone in federal court facing an indictment or federal information alleging child pornography or sexual exploitation offense is complex and very challenging. Here at Cannon & Associates, we have been successful in obtaining the best possible outcomes for many clients by applying the following common defenses and attacks of the government’s evidence in our client’s cases:
The most common defense relates to the point that the person depicted in the image(s) or video is not a minor. For possession, distribution, or creation (sexual exploitation) of child pornography to be criminal, a minor must be involved. We have obtained the expertise and advice of pediatricians and medical experts to support the defense that the individual(s) depicted is over the age of 18.
It is legal to have a sexual relationship with someone that is sixteen years of age in Oklahoma, as that is the “age of consent.” However, it is a federal crime to possess images of a minor under federal law, including a person that is 16 or 17 years old. Therefore, the prosecution of child pornography for a minor that has reached the Oklahoma age of consent is complicated. That is why it is vital to obtain the services of an experienced Oklahoma child pornography defense attorney if you or a loved one are facing this situation. Although it may be lawful to have sex with a 17 year old in Oklahoma, it can still subject you to federal prison time.
The legal definition of the terms associated with child pornography is an important defense as well. Sexually explicit conduct is required for an image or video to be child pornography under federal law. When the government obtains images or videos depicting nudity of a minor without sexual activity it does not meet the statutory requirement for a violation of the child pornography offense.
Computer forensics is an important part of defending child pornography cases as well. The use of forensics can assist in determine how the evidence was obtained by law enforcement to evaluate whether or not a suppression motion is appropriate to seek to exclude evidence from the government’s case. Additionally, forensics can assist our defense in showing that hundreds of images or videos were downloaded or obtained incidentally, which is not a perfect defense; however, it is mitigating for sentencing purposes if the volume of videos/images were accidentally download through one large zip file, in lieu of systematic downloading and storage.
Computer forensic experts can also assist us identify the source or tracing of content, i.e. support a defense of the images being inadvertently obtained and subsequently destroyed or deleted upon opening/identification. Experts in computers can assist us in identify the search or path that lead to the child pornography content being identified or obtained.
The majority of federal child pornography cases involve peer-to-peer networks and software. The most common networks are not immune from malicious access and cases exist of hackers accessing child pornography maliciously through another person’s computer or computer network. It is very important to work with an experienced federal child pornography defense attorney if you have been the victim of malicious access.
Have Questions? Contact us now.
Facing federal child pornography or sexual exploitation charges or investigation is serious and frightening. Our firm has experience and dedication to defending clients facing federal prosecution for possession, distribution or production of child pornography.
One of the most important decisions clients facing federal child pornography cases must make is whether to fight their case or enter a plea. We have experience walking clients through the evidence and evaluating the likelihood of success in suppression motions and jury trial. This process helps clients make an informed decision on taking their case to trial or seeking a proposed plea agreement or superseding indictment with potentially less serious consequences in exchange for giving up their right to a jury trial. We are honored to assist you and your family in evaluating your circumstances and coming to the right decision for you and your family if you are facing federal prosecution.
Call or contact us now for a free confidential case strategy session to have your questions answered about the circumstances you face related to investigation or prosecution in federal court for child pornography allegations.