18 U.S.C. 2252/2252A Charges
18 U.S.C. 2252/2252A - An Overview
Many of the cases charged in Federal Court that deal with illegal images, such as child pornography, are charged under 18 U.S.C. section 2252 or 2252A. This is a complex statute that requires in depth legal research and investigation for every case handled. The details of these cases are crucial. This article is an overview of 18 U.S.C 2252 charges and 2252A.
Although 18 U.S.C. 2252 and 2252A are analogous, 2252 is more narrow in scope due to its narrower definition of objectionable material. While 2252A was enacted to punish individuals who were using a loophole to get around 2252 by using morphed illegal images, the original definition was struck down in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002). In 2003, Congress "fixed" this problem with the law by deleting the phrase "appears to be" and replacing it with the word "indistinguishable." This change in the statue greatly expands what is subject to prosecution to deal with the rapid changes of technology.
Another significant piece of legislation dealing with both 2252 and 2252A is the 2003 PROTECT Act which changed or amended many provisions of both sections. The PROTECT Act enacted new statute of limitations for child abduction and sex crimes, added a new pandering provision, made a new and expanded version of the definition for pornography, added a section of obscenity, added Amber alert provisions, enacted an expansion of the ability to prosecute sex tourism, added a new section on international parental kidnapping, and perhaps most significantly, greatly increased the mandatory minimums for 2252 and 2252A crimes, seeing possession rise to a mandatory 10 years and receipt/distribution/sale jumping to a mandatory minimum of 5 years.
Following the PROTECT Act, in 2006 Congress enacted the Adam Walsh Child Protection and Safety Act. This piece of legislation again changed many aspects of how 2252 and 2252A cases are handled, especially how discovery issues are handled, along with eradicating the statute of limitations on these offenses. The legislation also enacted substantial collateral consequences to convictions for these and any other federal sex offense.
While the brief article below deals with 2252 matters, many of the issues are similar and the legal reasoning will follow the same path. The biggest difference, as noted above, is that 2252A is more broad and has the ability to criminalize conduct that the earlier statute, 2252, did not. In practice, 2252 is another tool for the government.
Cyber Sex Crimes: 18 U.S.C. § 2252
Child pornography is among the fastest growing crimes. Internet crimes related to this statute fall under 18 U.S.C. § 2252(a)(4)(B) and punishment for such internet crimes are prescribed in (b)(2). These cases can be very delicate. Whether the materials contain an image of an adult or minor is a pivotal fact defense counsel must explore because the government does not need to present expert witness testimony to prove this element. Facts such as this are critical in preparing a defense strategy. This article examines 18 U.S.C. § 2252, outlining common factual, legal and sentencing issues.
What images constitute illegal sexually explicit conduct? Of course the First Amendment does not protect obscenity, yet this alone does not provide a method in which to determine if your client really possessed illegal material. Federal court will apply the Miller test to determine whether the images are obscene: does the image as a whole appeal to the “prurient interest…in a patently offensive way,” lacking “serious “value?” Images that are of "lascivious exhibition of the genitals," or of a minor engaging or willing to engage in sexual activity, or the depiction of children as “sexual objects” are all certainly obscene. Not every image will fit into these definitions, thus a fact specific analysis and the introduction of extrinsic evidence must be utilized to show that the image as a whole is not obscene. For instance, certain images, while disturbing, may be deemed “child erotica” and not, therefore, illegal images for purposes of the statute.
The statute provides an affirmative defense. 18 U.S.C. § 2252 provides a limited affirmative defense. If the defendant possessed less than three pornographic materials and promptly reported the materials to law enforcement then the affirmative defense might succeed. Difficulty arises if the defendant showed or transmitted the materials to anyone other than police, if the materials remain on the defendant’s hard drive, or if the amount of materials is uncertain.
The Defendant’s mens rea is a possible defense. Counsel may have a fact pattern in which to argue reasonable doubt regarding the defendant’s knowledge of the images. This argument must be fact based. For example, if the case involves few images or if the images were attachments never opened or opened only once, defense should attempt to emphasize these facts. If the subject in the images is near the age of 18, willingly participates, and the defendant has no knowledge of the subject’s real age, then defense counsel may have an argument to circumvent the knowledge requirement. The area on the computer where the images were located is important for this type of defense. If such images were found in the defendant’s personal folder, and such images had been accessed more than once, the ability to argue lack of knowledge is compromised. On the other hand, if the images were located in unallocated space (deleted), and the Defendant has not accessed the images from unallocated space, the viability of a knowledge based defense is increased.
Yet, many cases present facts in which the subject is clearly a minor or the internet images were opened numerous times. Knowledge of the simple “nature and character” of the materials and not knowledge that the material is illegal is sufficient. In this situation defense counsel should focus upon the evidence that the government will attempt to admit to prove knowledge because such evidence may appear prejudicial or place the defendant in a bad light. For example, if the defendant intermingled legal (adult) pornography with the illegal child pornography all of the materials will be admissible to show knowledge. The more child pornography present makes the possibility of knowledge more likely. Child erotica may become admissible to show knowledge concerning child pornography. Non-sexual photos which show a subject who is depicted sexually in other images may also be admissible to show knowledge. In situations where you are facing a trial, it is crucial to engage in pre-trial motion practice to attempt to limit the number of images admitted as well as the types of images admitted. Failure to understand the number and types of images the Government will admit at trial will severely impact both your trial strategy and argument.
Often the images are illegal and they are on the Defendant’s computer. Knowledge to the presence of the images is undeniable. In these situations, which are very common, it is important to examine how the Government obtained the images on your client’s computer. For example, were the images recovered by the use of a search warrant, or were they recovered after the Defendant consented to a search of his or her computer?
The most basic Fourth Amendment question in computer cases asks whether an individual enjoys a reasonable expectation of privacy in electronic information stored within computers (or other electronic storage devices) under the individual’s control. For example, do individuals have a reasonable expectation of privacy in the contents of their laptop computers, USB drives, or cell phones? When confronted with this issue, courts have analogized the expectation of privacy in a computer to the expectation of privacy in closed containers such as suitcases, footlockers, or briefcases. Because individuals generally retain a reasonable expectation of privacy in the contents of closed containers, individuals also generally retain a reasonable expectation of privacy in data held within electronic storage devices. Accordingly, accessing information stored in a computer ordinarily will implicate the owner’s reasonable expectation of privacy in the information.
Defense counsel must determine whether or not such images were contained in a single closed container or in separate containers. Although courts have generally agreed that electronic storage devices can be analogized to closed containers, they have reached differing conclusions about whether a computer or other storage device should be classified as a single closed container or whether each individual file stored within a computer or storage device should be treated as a separate closed container. In two cases, the Fifth Circuit determined that a computer disk containing multiple files is a single container. First, in United States v. Runyan the Fifth Circuit held that the police did not exceed the scope of the private search when they examined additional files that were previously privately searched and the private search turned up evidence of child pornography. By analogizing a disk to a closed container, the court explained, the “police do not exceed the private search when they examine more items within a closed container than did the private searchers.” In a subsequent case, the Fifth Circuit held that when a warrantless search of a portion of a computer and zip disk had been justified, the defendant no longer retained any reasonable expectation of privacy in the remaining contents of the computer and disk, and thus a comprehensive search by law enforcement personnel did not violate the Fourth Amendment.
Defense counsel must also be prepared to make Forth Amendment arguments tailored to the type of computer the defendant used. Although courts have analogized electronic storage devices to closed containers, some courts have also noted characteristics of computers which distinguish them from other closed containers. In United States v. Walser, the Tenth Circuit observed that “[t]he advent of the electronic age and . . . the development of desktop computers that are able to hold the equivalent of a library’s worth of information, go beyond the established categories of constitutional doctrine. Analogies to other physical objects, such as dressers or file cabinets, do not often inform the situations we now face as judges when applying search and seizure law.”
If the search was not conducted by consent, the government, more than likely, possesses a search warrant for the computer which allows them to conduct an off site analysis of the contents of the computer hard drive. It is necessary to look closely at the affidavits supporting the warrant, along with the warrant, in order to determine whether there are potential suppression issues. Two possible issues are that the government exceeded the scope of the warrant and, thus, the material seized was not authorized to be seized, or that the warrant was defective. For instance, counsel may argue that the search was improper because it was so large in scope that it amounted to a flagrant disregard of the terms of the warrant. In such a case, the search is executed in “flagrant disregard” of its terms when the officers so grossly exceed the scope of the warrant during execution that the authorized search appears to be merely a pretext for a “fishing expedition” through the target’s private property. A defendant may also argue that the warrant lacked sufficient information to justify a search warrant. For instance, the affidavit in support of the warrant may contain either false information or information that is insufficient to merit the granting of a search warrant. In such instances, counsel must be familiar with the holding and requirements of Franks v. Delaware and strictly follow the guidelines which in a nut shell requires that a search warrant be voided and the fruits of the search excluded if the defendant substantial shows in a hearing that the affiant made false statements which were relied upon for probable cause.
If, in the end, your client pleads guilty or is found guilty, the task of sentencing presents a new set of difficulties. Although the United States Sentencing Guidelines are no longer mandatory, they are none-the-less crucial in any sentencing hearing. In the context of this article, all the potential pitfalls of the Guidelines will not be discussed. However, the number of images and type of images are crucial in determining a score. Also, the aspect of whether the defendant produced images, or distributed images is also a key factor. Counsel should be sure to use the response to the Probation Department’s Pre-Sentence Report (“PSI”) to try and limit the exposure often gained by application of the Guidelines. Often, the Defendant’s objections to the PSI or response to the PSI offer an opportunity to begin shaping the sentencing argument.
The Guidelines aside, counsel will need to consider 18 U.S.C. § 3553 factors at sentencing. The § 3553 factors allow the Defendant the opportunity to present mental health issues as well as personal history issues to the court. Under § 3553, counsel should consider presenting to the Court a risk analysis of the client as to recidivism through use of the Static 99 or other psychological evaluation tool. The § 3553 factors further offer the defense an opportunity to present mitigation evidence that the Guidelines have deemed inconsequential. Many clients facing these types of charges have experienced significant childhood trauma and abuse. Section § 3553 allows counsel to present the holistic view of their client and expands the issues the Court must address at sentencing.
Final considerations in these types of cases are two relatively new laws. One, the Adam Walsh Child Protection and Safety Act of 2006, and the SORNA Act impact these type of cases by, among other issues, increasing the mandatory punishment, removing the statute of limitations, and mandating registration for convicted defendants. In particular, the Adam Walsh Act impacts the defense’s ability to access discovery as well as affecting pre-trial release conditions and significantly changing the statute of limitations - there is no statute of limitation after the Adam Walsh Act.
Knowing the federal law concerning this type of cyber crime is important because cyber crime implicates interstate transporting by its very nature. Thus, any client who is under investigation for cyber crime may very well be looking at a federal investigation, or indictment.
