Distribution of Child Pornography-FEDERAL


FEDERAL CHILD PORNOGRAPHY CRIMINAL DEFENSE ATTORNEY - Alexandria, Arlington, Baltimore, Charlottesville, Culpepper, Fairfax, Falls Church, Greenbelt, Harrisonburg, Leesburg, Loudoun County, Manassas, Norfolk, Prince William, Richmond, Roanoke, Stafford, Warrenton, Winchester, Vienna, Washington, DC

Federal Distribution of Child Pornography- 18 U.S.C. 2252

To be convicted of the federal crime of distribution of child pornography, the government must prove the following four (4) essential elements beyond a reasonable doubt: (1) the Accused knowingly distributed books, magazines, periodicals, films, video tapes, or other matters which the Accused knew contained at least one visual depiction of a minor engaged in sexually explicit conduct; (2) the Accused knew the visual depiction contained in the distributed books, magazines, periodicals, films, video tapes, or other matters depicted a minor engaged in sexually explicit conduct; (3) the Accused knew that production of such a visual depiction involved use of a minor in sexually explicit conduct; and (4) that the visual depiction had been either a) mailed, shipped, or transported in interstate or foreign commerce, or b) produced using material that had been mailed, shipped, or transported in interstate or foreign commerce by computer or other means.

The phrase “child pornography” means any visual depiction that has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct, or where the minor was engaged in the sexually explicit conduct during production of the depiction.
“Visual depiction” includes any photograph; film; video; and picture or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means. It includes undeveloped film and videotape, and data stored on computer disk or by electronic means that is capable of conversion into a visual image or from which pornographic images could be retrieved.

A “minor” is any person under the age of 18 years.

The term “identifiable minor” as used in the definition of child pornography means a person who was a minor at the time the visual depiction was created, adapted or modified or whose image as a minor was used in creating, adapting, or modifying the visual depiction and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature. The government is not required to prove the actual identity of the identifiable minor.

“Sexually explicit conduct” means actual or simulated sexual
intercourse, including genital-genital, oral-genital, anal-genital, and oral-anal, whether between persons of the same or opposite sex; bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.

“Producing” can mean producing, directing, manufacturing, issuing, publishing, advertising or downloading visual depictions from the Internet.

“Matter” is a physical media capable of containing images such as a computer hard drive or disk.

Whether a visual depiction of the genitals or pubic area constitutes a lascivious exhibition requires a consideration of the overall content of the material; i.e. (1) whether the focal point of the picture is on the minor's genitals or pubic area; (2) whether the setting of the picture is sexually suggestive, that is, in a place or pose generally associated with sexual activity; (3) whether the minor is depicted in an unnatural pose or in inappropriate attire, considering the age of the minor; (4) whether the minor is fully or partially clothed, or nude; (5) whether the picture suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the picture is intended or designed to elicit a sexual response in the viewer; (7) whether the picture portrays the minor as a sexual object; and (8) the caption(s) on the picture(s).

A picture need not involve all of these factors to constitute a lascivious exhibition of the genitals or pubic area.  Further, the factors are neither comprehensive nor necessarily applicable in every situation.

The phrase “interstate commerce” means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia.

The phrase “foreign commerce” means commerce between any state, territory or possession of the United States and a foreign country.

The term “commerce” includes, among other things, travel, trade, transportation and communication.

Images transmitted or received over the Internet have moved in interstate or foreign commerce.

The term “computer” as used in this instruction means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.

It is can be an affirmative defense if, under certain circumstances, the Accused possessed “less than three matters containing any visual depiction.”

The statute also requires the government to prove that the Accused knew or should have known the age of the person depicted. The age of the child depicted may be proved by, inter alia, language used by the Accused in correspondence; the Postal Inspector’s professional and personal familiarity with child development; and a pediatrics professor’s testimony.

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