Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

United States v. Williams, 128 S.Ct. 1830 (2008)

The Supreme Court upheld the child pornography pandering provision that had earlier been held unconstitutional by the Eleventh Circuit. The statute, 18 U.S.C. § 2252A(a)(3)(B) makes it a crime to solicit, or to offer to sell or distribute material that is purported to be child pornography. The Court rejected the defendant’s claim that it violates the First Amendment to make it a crime to offer to sell or distribute material as child pornography, if, in fact, the material being offered for sale is not, in fact, child pornography. The Court also rejected a Fifth Amendment vagueness challenge.

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

The Supreme Court holds that the “virtual” pornography provision contained in the 1996 Child Pornography Prevention Act is unconstitutional. This provision is not intrinsically related to the protection of children or to the sexual abuse of children, because, by definition, no children are involved in the production of the images. In addition, the statute is defective because it does not incorporate the community standards test of obscenity requiring that the artistic merit of a work be judged considering the work as a whole.

Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002)

The Child Online Protection Act is not unconstitutionally overbroad just because it uses a community standards test to regulate speech on the World Wide Web.

United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)

The United States Supreme Court held that the statute outlawing the interstate transportation of obscene material depicting minors, 18 U.S.C. §2252, has an implicit requirement that the offender know that the actor depicted is a minor.

United States v. Encarnacion-Ruiz, 787 F.3d 581 (1st Cir. 2015)

In a child pornography production case, if a defendant is charged with aiding and abetting the production of child porn, a mistake of fact (the child’s age) is a defense. Unlike the principal perpetrator, who cannot raise this defense, pursuant to Rosemond v. United States, an aider and abettor must have the intent to commit the offense including all elements of the crime.

United States v. Husmann, 765 F.3d 169 (3rd Cir. 2014)

Possessing child pornography and a file-sharing program is not alone sufficient to convict the defendant of distributing child pornography. There must be evidence that someone else downloaded the pornography from the defendant’s computer. This holding applies to the code section that makes it a crime to distribute child pornography, but does not apply to the sentencing guideline, which defines “distribute” to include possession with intent to distribute.

United States v. Emly, 747 F.3d 974 (8th Cir. 2014)

The possession of several images of child pornography only amounts to one offense under 18 U.S.C. § 2252(a)(4)(A) and (B). Unlike § 2252A, the former sections make it a crime to possess “one or more” items of child pornography.

United States v. Grzybowicz, 747 F.3d 1296 (11th Cir. 2014)

A defendant who transfers images of child pornography from his phone to his computer has not committed the offense of distribution of child pornography under 18 U.S.C. §2252A(a)(2).

Boland v. Holder, 682 F.3d 531 (6th Cir. 2012)

Neither a defense attorney, nor his forensic expert, are exempt from the laws proscribing the possession or creation of child pornography and therefore, the creation of child pornography (even for purposes of a demonstration at trial), by photo-shopping a child’s head on a nude adult body is a criminal offense.

United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012)

The possession of several items of child pornography on different computers in one location can only support one count of “possession one or more items of child pornography.” 18 U.S.C. § 2252(a)(4)(B). A different result might apply to charges brought under 18 U.S.C. § 2252A, which makes it a crime to possess “any” items of child pornography.

United States v. Huether, 673 F.3d 789 (8th Cir. 2012)

Possession of child pornography is a lesser included offense of receipt of child pornography if both charges involve the same images. In this case, the trial court did not identify for the jury which images applied to which count and therefore, there was no way to determine that the jury did, in fact, convict the defendant of the two offenses based on separate images.

United States v. Moreland, 665 F.3d 137 (5th Cir. 2011)

The evidence was insufficient to support the defendant’s conviction of possessing chid pornography that was found in the “slack space” of a computer the defendant shared with others in the house. The defendant’s father was known to be a pornography “enthusiast” and the evidence equally pointed to him as the possessor.

United States v. Johnson, 652 F.3d 918 (8th Cir. 2011)

The evidence was insufficient to support a conviction for receiving child pornography, though there was sufficient evidence to prove possession. The defendant’s computer had chid pornography images. The indictment alleged that he possessed child pornography that had been shipped and transported in interstate commerce, a violation of § 2252(a)(2). However, when the judge instructed the jury, the jurisdictional element was explained as follows: “The materials containing the illicit visual depictions were produced using materials that had been mailed, shipped, or transported by computer in interstate or foreign commerce.” There was no evidence at trial that the components of the computer were shipped in interstate commerce. The Eighth Circuit held that where the jury instructions limit the manner in which the offense may be committed, this also limits the sufficiency-of-the-evidence review by the appellate court. The evidence was insufficient in this case.

United States v. Ehle, 640 F.3d 689 (6th Cir. 2011)

Convictions for both possessing and receiving child pornography violated the double jeopardy clause. The convictions could not stand, even though the defendant entered a guilty plea.

United States v. Lynn, 636 F.3d 1127 (9th Cir. 2011)

It violates double jeopardy to convict a person of both receiving and possessing child pornography. Even if the offenses were alleged to have occurred on different dates, this does not necessarily alleviate the constitutional problem.

United States v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011)

The double jeopardy clause prohibits a conviction for both receiving and possession child pornography. The Eighth Circuit remanded to the district court to determine which conviction should be vacated.

United States v. Steen, 634 F.3d 822 (5th Cir. 2011)

The surreptitious video recording of a naked minor girl on a tanning salon bed was not lacivicious, because the video did not draw attention the girl’s genital area for the purpose of sexual stimulation of the viewer. The court cited the five factors originally detailed in United States v. Dost, 636 F.Supp. 828 (S.D.Cal. 1986), in reaching its decision.

United States v. Szymanski, 631 F.3d 794 (6th Cir. 2011)

The defendant entered a guilty plea to receiving child pornography under 18 U.S.C. § 2252(a)(2). However, during the plea colloquy, it was not made clear to the defendant that the scienter requirement of the statute required that he know when he received the pornography that it included images of children engaged in sexual activity. See United States v. X-Citement Video, Inc., 513 U.S. 64 (1994). This defect in the plea necessitated setting aside the guilty plea.

United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011)

Child pornography that was only located in a temporary internet folder, or cache, on the defendant’s computer and not shown to have ever been viewed by the defendant cannot support a “receiving child pornography” conviction under § 2252 (as it existed at the time of the events in this case). The statute was amended in 2007 and now also outlaws “knowingly accessing sexually explicit images with the intent to view them,” which might have changed the result in this case.

United States v. Wright, 625 F.3d 583 (9th Cir. 2010)

Prior to the 2008 amendments to 18 U.S.C. § 2252A, the child pornography had to be mailed or transported in interstate or foreign commerce. (Now the statute outlaws receiving or sending child pornography “using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer”). Under the former version (which was the statute in force when the defendant’s conduct occurred), the government had to prove – and did not succeed in this case – that the pornography crossed a state line, not simply that the Internet was used. In this case, the undercover agent received the pornography from the defendant’s computer directly, computer-to-computer, without a server in another state being involved. The evidence was insufficient to support the conviction on that count. Based on Wright, the Ninth Circuit also reversed the conviction in United States v. Flyer, 633 F.3d 911 (9th Cir. 2011).

United States v. Broxmeyer, 616 F.3d 120 (2d Cir. 2010)

The defendant was charged with production of child pornography. 18 U.S.C. § 2251(a). The theory of the prosecution is that he induced his young girl friend to take sexually explicit photographs of herself and send the pictures to him. Though the evidence established that over the course of the relationship, he did encourage her to provide him sexually explicit photographs, there was insufficient evidence that he encouraged her to produce the particular photographs that were the subject of the indictment. In fact, the evidence indicated that the girl sent him the photographs prior to the time that they began their sexual relationship. Because of the absence of evidence proving that he induced or encouraged her to take the two pictures that were the subject of those two counts of the indictment, he could not be convicted of producing those pictures.

United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009)

In determining whether speech which is communicated online is obscene, the Ninth Circuit held that a “national standard” rather than a local community standard must be applied.

United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009)

The unit of prosecution for possession of child pornography is the defendant’s entire collection, not one count per image. For receipt prosecutions, however, the proper unit of prosecution is for each episode that images were received.

United States v. Lewis, 554 F.3d 208 (1st Cir. 2009)

18 U.S.C. § 2252(a)(2) makes it a crime to receive child pornography that has traveled in interstate commerce. The First Circuit holds that the images must, in fact, travel in interstate commerce in order for this statute to be violated. However, if the images are received over the Internet, this jurisdictional fact is established. NOTE: the statute has now been amended and the crime can be proven if the images traveled in or affected interstate commerce (2008 amendment to § 2252(a)(2)).

United States v. Rivera, 546 F.3d 245 (2d Cir. 2008)

Though ultimately upholding the conviction in this child pornography case, the Second Circuit thoroughly analyzes the requirement that an image be “lewd and lascivious” before it can qualify as pornography under 18 U.S.C. § 2256(2)(A)(v). The court concludes that a nude photo of a 16-year old male on a bed satisfied the requirement of the statute. The leading case on the definition of “lascivious” is United States v. Dorst, 636 F.Supp. 828 (S.D.Cal. 1986).

United States v. Schales, 546 F.3d 965 (9th Cir. 2008)

The double jeopardy clause prohibits a conviction on charges of both possessing and receiving material involving the sexual exploitation of minors.

United States v. Schene, 543 F.3d 627 (10th Cir. 2008)

The fact that a hard drive was manufactured in a foreign country, and that child pornography was found on the hard drive does not suffice to establish the jurisdictional prong in § 2252A(a)(5)(B) that the pornography was “produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce.” The hard drive did not “produce” the images, nor did the hard drive “produce” the images by portraying the images on the computer monitor. However, under the plain error standard of review, the evidence was sufficient to establish that the images were created elsewhere and the hard drive was used to copy the images onto the defendant’s computer.

United States v. Davenport, 519 F.3d 940 (9th Cir. 2008)

A defendant may not be found guilty of both receiving and possessing child pornography. See also United States v. Miller, 527 F.3d 54 (3rd Cir. 2008) (same).

United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007) A child pornography prosecution requires proof that the image traveled in interstate commerce (including via a computer). In this case, the only evidence was that the image arrived via the Internet, but no proof of any interstate nexus. The mere fact that the image arrived over the Internet does not ipso facto establish that the image traveled in interstate commerce. OVERRULED in part by United States v. Sturm, 672 F.3d 891 (10th Cir. 2012).

United States v. McDowell, 498 F.3d 308 (5th Cir. 2007)

The defendant was charged with aiding and abetting a violation of 18 U.S.C. § 1461, mailing obscene material using the U.S. Postal Service. Though the obscene material was, in fact, mailed, there was in sufficient evidence that the defendant was aware that the mails were being used or that he aided and abetted the offense with the knowledge that the mails were being used to distribute the obscene videos.

United States v. Buchanan, 485 F.3d 274 (5th Cir. 2007)

The defendant was convicted of several counts of receiving child pornography, but the evidence did not prove that there was more than one download with regard to the charged counts and even though there were several pictures, they were received as part of one transfer and, therefore, the defendant could only be convicted of one count of receiving child pornography.

United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006)

A defendant may not be held responsible for images of child pornography that are contained in a computer’s internet cache file, unless there is proof that the defendant endeavored to access the images in the cache file, or was knowingly in possession of the images in that compartment of the computer.

United States v. Macewan, 445 F.3d 237 (3rd Cir. 2006)

Any use of the Internet in connection with pornography satisfies the interstate commerce requirement, regardless of whether the government introduces evidence that the actual images traveled across a state line.

American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3rd Cir. 2003)

On remand from the Supreme Court (535 U.S. 564) which upheld certain portions of the “Child Online Protection Act” 47 U.S.C. § 231, the Third Circuit found other provisions unconstitutional. First, because the Internet has no geographical limits, the Act is too broad in invoking “community standards” for determining what constitutes pornography. Second, the Act’s definition of “material harmful to minors” fails to allow for an evaluation of the material in context, thus the “taken as a whole” definition fails to meet First Amendment strictures. AFFIRMED: 542 U.S. 656 (2004).

United States v. Maxwell, 446 F.3d 1210 (11th Cir. 2006)

The initial panel decision (386 F.3d 1042) held that a blank computer disk that was transported in interstate commerce (while still blank), and later used to copy child pornography, but that was not transported in interstate commerce afterwards, did not provide federal jurisdiction. The panel held that the pornography must travel in interstate commerce, not just the disk (blank) onto which the pornography is later copied. This case contains a very lengthy analysis of the various theories of interstate commerce. – THIS CASE WAS SENT BACK TO THE ELEVENTH CIRCUIT FROM THE SUPREME COURT FOR RECONSIDERATION IN LIGHT OF GONZALEZ V. RAICH. ---- AND REVERSED on April 20, 2006 – 446 F.3d 1210 (11th Cir. 2006). The new decision held that copying pornography onto a disk that has previously traveled in interstate commerce is a federal offense.

United States v. Hilton, 363 F.3d 58 (1st Cir. 2004)

In a prosecution under 18 U.S.C. § 2252, if the defendant is alleged to have possessed photos of children in sexually explicit poses, the government must prove with relevant evidence – in addition to the pictures themselves – that the images appearing in the photo are, in fact, real children. The defendant is entitled to have this element proved affirmatively without entering any evidence to the contrary. NOTE: This decision was subsequently withdrawn and a new decision was issued on Sept. 27, 2004 – United States v. Hilton, 386 F.3d 13 (1st Cir. 2004). In the new decision, the court again granted post-conviction relief, but this time only on the basis that the trial judge (this was a bench trial) failed to make any finding of fact regarding whether the materials the defendant possessed depicted real children. This is an element of the offense. The First Circuit did not allude to the necessity of presenting any evidence to affirmatively disprove the possibility that the images were not real.

United States v. Corp, 236 F.3d 325 (6th Cir. 2001)

The defendant’s possession of pornographic pictures of his wife and girlfriend having sexual relations could not be prosecuted under 18 U.S.C. § 2252(a)(4)(B), because of a lack of a sufficient interstate nexus. The fact that the photographic paper was manufactured out of state was not a sufficient nexus. This case was later distinguished in United States v. Andrews, 383 F.3d 374 (6th Cir. 2004). Still later, the Sixth Circuit held that in light of Raich, the decision in Corp was no longer good law. United States v. Bowers, 594 F.3d 522 (6th Cir. 2010).

United States v. Burian, 19 F.3d 188 (5th Cir. 1994)

The federal statute criminalizing the knowing receipt of visual depictions of minors engaged in sexually explicit conduct has an implicit knowledge requirement that the defendant be aware (or be recklessly disregarding) the age of the performer.

United States v. Easley, 942 F.2d 405 (6th Cir. 1991)

In instructing the jury on the definition of obscenity, the judge explained that whether the material “lacked serious literary, artistic, political or scientific merit” was judged by an average person applying contemporary community standards. This was erroneous. The material is not to be judged on a local community standard in deciding the third prong of the Miller test. That test focuses only on the reasonable person, not a reasonable person in that community.

United States v. Shumway, 911 F.2d 1528 (11th Cir. 1990)

The defendant was prosecuted for violating 18 U.S.C. §1461, mailing obscene matter. The defendant, a woman, had posed for various sexual videotapes which were made by her boyfriend. Unbeknownst to her, after she and her boyfriend broke up, the boyfriend sold the videotapes through magazine advertisements. The evidence was not sufficient to convict the woman since there was no proof that she was aware that the tapes would be used for that purpose. The act of posing for tapes does not provide proof of the defendant’s knowledge that her boyfriend would later mail the tapes in interstate commerce.