00-795Subject:Child Pornography Prevention Act, First Amendment, Free SpeechQuestion:The Child Pornography Prevention Act of 1996, prohibits, inter alia, the shipment, distribution, receipt, reproduction, sale, or possession of any visual depiction that "appears to be[] of a minor engaging in sexually explicit conduct." 18 U.S.C. 2252A, 2256(8)(B) (Supp. IV 1998). It also contains a similar prohibition concerning any visual depiction that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.

U.S. v. Brown, -- F.3d --, 2008 WL 2485933 (10th Cir. 6/23/08) - sentence for possession of child porn was erroneously enhanced under 18 U.S.C. § 2252A(b)(2) based on Mr. Brown's previous conviction under Article 134 of the Uniform Code of Military Justice. The statute provides that prior convictions "under this chapter" count as sentence-enhancers and Mr. Brown's prior conviction was for a violation of the catch-all provision of Article 134, not § 2522, even though the military court assimilated the elements of the prior crime from § 2252 and the elements of Mr. Brown's prior crime were identical to the elements of the enumerated sentence-enhancer.

Gall has had a particularly significant impact on the review of sentences imposed in illegal possession of child pornography cases in the Fifth Circuit. On June 9, 2008 the court of appeal dealt with a case involving a defendant who possessed 400 images of hardcore child pornography and convicted pursuant to 18 U.S.C. 2252A(a)(5)(B). See: United States v. Rowan, 530 F.3d 379 (5th Cir. 2008) The defendant in Rowan was given a 60-month probated sentence because the district court found he had no criminal history and would benefit from continuing medical treatment by a psychologist.

See: Blockburger, supra, 284 U.S. at 304. Applying this test, the Ninth Circuit concluded:”We begin by examining whether receipt of material involving sexual exploitation of minors requires proof of an additional fact which possession of material involving sexual exploitation of minors does not … we recently held that convictions for both receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and possessing child pornography in violation of 18 U.S.C § 2252A((a)(5)(B) violated the Double Jeopardy Clause because the offense of possessing child pornography is a lesser-included offense of the receipt of child pornography. We see no reason to conclude otherwise when it comes to receiving material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a) (2) and possessing material involving the sexual exploitation of minors in violation of 18 U.S.C. § 2252(a) (4) (B).”The Supreme Court has recognized that comparing statutes to determine whether one set of elements is a subset of another requires a purely textual comparison … A comparison of the texts of the receipt offense, § 2252(a)(2), and the possession offense, § 2252(a)(4)(B), reveals that possession is a lesser-included offense of receipt … Thus, while the government can indict a defendant for both receipt and possession of sexually explicit material, entering judgment against him is multiplicitous a

NMCCA today issued an important published opinion setting aside a finding of guilty to distribution of child pornography under 18 U.S.C. § 2252A(a)(2). CAAFLog, 28 May 2009.AFCCA today issued a fascinating published opinion, which I’ve posted here.

Review granted on the following issue:WHETHER THE SENTENCE MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE DETERMINED THE SENTENCE BASED ON THE INCORRECT MAXIMUM PUNISHMENT.Briefs will be filed under Rule 25.Note the accused was sentenced to confinement for 10 months, a bad conduct discharge, and RIR to E-1 for possession of child pornography.Before AFCCA the appellant:On appeal the appellant challenges the military judge’s determination of the maximum punishment, arguing that the language of the specification precludes application of the analogous federal law maximum of ten years under the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2252A. Finding no error prejudicial to the substantial rights of the appellant, we affirm.

Are Federal Sentencing Guideline Substantively Unreasonable in Child Pornography Cases?In July 2011, Thomas King was indicted by a Federal grand jury in Maine for possessing a computer storing child pornography—a criminal violation under 18 U.S.C. § 2252A (a) (5) (B). A forensic examination of King’s computer revealed disguised recorded videos of his minor stepdaughter masturbating in her bathroom. Each video contained 75 child pornographic images, placing King’s offense in the range of 150 to 300 offending images.

Second, SORNA's registration requirements are a limited and rational extension of congressional power, as permitted by the Necessary and Proper Clause. (2) 18 U.S.C. § 2252A(a)(5)(B), which prohibits possessing, or accessing with intent to view, materials containing child porn images, is not facially unconstitutionally overbroad. The 10th concedes an imprecise law that criminalizes access to Lolita or Woody Allen's Manhattan would be unconstitutional.

Helton alleged that he had been sexually abused as a juvenile, and admitted he had sexually abused another minor while a minor himself, and that he had a history of viewing child pornography, for which he had sought unsuccessful treatment. A federal grand jury indicted Helton for two counts of knowing receipt and possession of child pornography under 18 U.S.C. §§ 2252A(a)(2), (a)(5)(B), and § 2252A(b)(1)-(2). Helton pled guilty to one count of knowing possession of child pornography under U.S.C. § 2252A(a)(5)(B) and § 2252A(b)(2).

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.