Former Manhattan prosecutors specializing in criminal defense and civil rights in state and federal courts.

Send My Information

Criminal Defense Attorney Discusses Federal Pornography and Obscenity Charges

Posted By Galluzzo & Arnone || 21-May-2014

Recently, federal law enforcement authorities announced the arrests of 71 people in the New York City area in connection with an alleged child pornography production and distribution ring.

The federal charges most often applied to the creation, manufacture, possession and distribution of obscene materials involving minors are typically the following: 18 USC § 1466A, 18 USC § 2251, 18 USC § 2252, 18 USC § 2252A. The full language of those charges is available below at the end of the article.

Of course, a conviction for any of these crimes can have serious potential consequences. Serious jail time is a very realistic possibility for anyone convicted of any of these crimes, as is registration as a sex offender in your home state. Careers, reputations and families can be ruined. Enormous civil penalties and fines can also be levied against those convicted of these crimes.

The Federal Sentencing Guidelines are very complicated, and you should consult with a criminal defense attorney to understand the sentencing exposure for a person accused of one of these crimes, but generally speaking, the Guidelines suggest the following sentencing ranges for persons convicted of these crimes: LINK AVAILABLE HERE (US Sentencing Guidelines 2G2.2). There are aggravating and mitigating factors in the Guidelines calculations, but generally, someone without a criminal record is probably going to start at a base offense level of 18 or 22. A conviction for a base offense level 18 crime involving a person with no criminal record translates to a Guidelines sentence of 27-33 months in prison, and a conviction for a base offense level 22 crime involving a person with no criminal record translates to a Guidelines sentence of between 41-51 months in prison. Criminal convictions can cause the numbers to escalate significantly (by moving to the right from column to column on the Sentencing Table). To view the 2013 Guidelines Sentencing Table, click here.

Thankfully, these cases can be very defensible. Sometimes a person charged with possessing explicit images of minors might be able to argue that images are in fact images of adults. In other cases, computer experts may be able to demonstrate that the criminal images were unwittingly downloaded or received onto the accused’s computer by a computer virus or malware, meaning that there was neither knowledge of the images nor malicious intent on the part of the accused.

If you or a loved one have been arrested in connection with federal charges of this nature, you should seriously consider contacting the experienced criminal defense attorneys at Galluzzo & Arnone LLP. Matthew Galluzzo, in particular, is a former Manhattan sex crimes prosecutor and is a well-recognized expert in the investigation and prosecution of sex crimes; he has served as a consultant to the South African government’s sex crimes prosecution agency and he has been quoted several times on the subject by media outlets including the New York Times and Reuters, among others.

TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
PART I – CRIMES
CHAPTER 71 – OBSCENITY

18 USC 1466A

(a) In General. – Any person who, in a circumstance described in
subsection (d), knowingly produces, distributes, receives, or
possesses with intent to distribute, a visual depiction of any
kind, including a drawing, cartoon, sculpture, or painting, that –
(1)(A) depicts a minor engaging in sexually explicit conduct;
and
(B) is obscene; or
(2)(A) depicts an image that is, or appears to be, of a minor
engaging in graphic bestiality, sadistic or masochistic abuse, or
sexual intercourse, including genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the same or
opposite sex; and
(B) lacks serious literary, artistic, political, or scientific
value;

or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(1), including the penalties
provided for cases involving a prior conviction.
(b) Additional Offenses. – Any person who, in a circumstance
described in subsection (d), knowingly possesses a visual depiction
of any kind, including a drawing, cartoon, sculpture, or painting,
that –
(1)(A) depicts a minor engaging in sexually explicit conduct;
and
(B) is obscene; or
(2)(A) depicts an image that is, or appears to be, of a minor
engaging in graphic bestiality, sadistic or masochistic abuse, or
sexual intercourse, including genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the same or
opposite sex; and
(B) lacks serious literary, artistic, political, or scientific
value;

or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(2), including the penalties
provided for cases involving a prior conviction.
(c) Nonrequired Element of Offense. – It is not a required
element of any offense under this section that the minor depicted
actually exist.
(d) Circumstances. – The circumstance referred to in subsections
(a) and (b) is that –
(1) any communication involved in or made in furtherance of the
offense is communicated or transported by the mail, or in
interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
(2) any communication involved in or made in furtherance of the
offense contemplates the transmission or transportation of a
visual depiction by the mail, or in interstate or foreign
commerce by any means, including by computer;
(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have been
shipped or transported in interstate or foreign commerce by any
means, including by computer; or
(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any territory
or possession of the United States.

(e) Affirmative Defense. – It shall be an affirmative defense to
a charge of violating subsection (b) that the defendant –
(1) possessed less than 3 such visual depictions; and
(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any such visual depiction –
(A) took reasonable steps to destroy each such visual
depiction; or
(B) reported the matter to a law enforcement agency and
afforded that agency access to each such visual depiction.

(f) Definitions. – For purposes of this section –
(1) the term visual depiction includes undeveloped film and
videotape, and data stored on a computer disk or by electronic
means which is capable of conversion into a visual image, and
also includes any photograph, film, video, picture, digital image
or picture, computer image or picture, or computer generated
image or picture, whether made or produced by electronic,
mechanical, or other means;
(2) the term sexually explicit conduct has the meaning given
the term in section 2256(2)(A) or 2256(2)(B); and
(3) the term graphic, when used with respect to a depiction
of sexually explicit conduct, means that a viewer can observe any
part of the genitals or pubic area of any depicted person or
animal during any part of the time that the sexually explicit
conduct is being depicted.

TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
PART I – CRIMES
CHAPTER 110 – SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

18 USC 2251

(a) Any person who employs, uses, persuades, induces, entices, or
coerces any minor to engage in, or who has a minor assist any other
person to engage in, or who transports any minor in or affecting
interstate or foreign commerce, or in any Territory or Possession
of the United States, with the intent that such minor engage in,
any sexually explicit conduct for the purpose of producing any
visual depiction of such conduct or for the purpose of transmitting
a live visual depiction of such conduct, shall be punished as
provided under subsection (e), if such person knows or has reason
to know that such visual depiction will be transported or
transmitted using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce or
mailed, if that visual depiction was produced or transmitted using
materials that have been mailed, shipped, or transported in or
affecting interstate or foreign commerce by any means, including by
computer, or if such visual depiction has actually been transported
or transmitted using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce or
mailed.
(b) Any parent, legal guardian, or person having custody or
control of a minor who knowingly permits such minor to engage in,
or to assist any other person to engage in, sexually explicit
conduct for the purpose of producing any visual depiction of such
conduct or for the purpose of transmitting a live visual depiction
of such conduct shall be punished as provided under subsection (e)
of this section, if such parent, legal guardian, or person knows or
has reason to know that such visual depiction will be transported
or transmitted using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce or
mailed, if that visual depiction was produced or transmitted using
materials that have been mailed, shipped, or transported in or
affecting interstate or foreign commerce by any means, including by
computer, or if such visual depiction has actually been transported
or transmitted using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce or
mailed.
(c)(1) Any person who, in a circumstance described in paragraph
(2), employs, uses, persuades, induces, entices, or coerces any
minor to engage in, or who has a minor assist any other person to
engage in, any sexually explicit conduct outside of the United
States, its territories or possessions, for the purpose of
producing any visual depiction of such conduct, shall be punished
as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that –
(A) the person intends such visual depiction to be transported
to the United States, its territories or possessions, by any
means, including by using any means or facility of interstate or
foreign commerce or mail; or
(B) the person transports such visual depiction to the United
States, its territories or possessions, by any means, including
by using any means or facility of interstate or foreign commerce
or mail.

(d)(1) Any person who, in a circumstance described in paragraph
(2), knowingly makes, prints, or publishes, or causes to be made,
printed, or published, any notice or advertisement seeking or
offering –
(A) to receive, exchange, buy, produce, display, distribute, or
reproduce, any visual depiction, if the production of such visual
depiction involves the use of a minor engaging in sexually
explicit conduct and such visual depiction is of such conduct; or
(B) participation in any act of sexually explicit conduct by or
with any minor for the purpose of producing a visual depiction of
such conduct;

shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that –
(A) such person knows or has reason to know that such notice or
advertisement will be transported using any means or facility of
interstate or foreign commerce or in or affecting interstate or
foreign commerce by any means including by computer or mailed; or
(B) such notice or advertisement is transported using any means
or facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce by any means including by computer
or mailed.

(e) Any individual who violates, or attempts or conspires to
violate, this section shall be fined under this title and
imprisoned not less than 15 years nor more than 30 years, but if
such person has one prior conviction under this chapter, section
1591, chapter 71, chapter 109A, or chapter 117, or under section
920 of title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to aggravated
sexual abuse, sexual abuse, abusive sexual contact involving a
minor or ward, or sex trafficking of children, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 25 years nor more
than 50 years, but if such person has 2 or more prior convictions
under this chapter, chapter 71, chapter 109A, or chapter 117, or
under section 920 of title 10 (article 120 of the Uniform Code of
Military Justice), or under the laws of any State relating to the
sexual exploitation of children, such person shall be fined under
this title and imprisoned not less than 35 years nor more than
life. Any organization that violates, or attempts or conspires to
violate, this section shall be fined under this title. Whoever, in
the course of an offense under this section, engages in conduct
that results in the death of a person, shall be punished by death
or imprisoned for not less than 30 years or for life.

TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
PART I – CRIMES
CHAPTER 110 – SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

18 USC 2252A


(a) Any person who –
(1) knowingly mails, or transports or ships using any means or
facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce by any means, including by
computer, any child pornography;
(2) knowingly receives or distributes –
(A) any child pornography that has been mailed, or using any
means or facility of interstate or foreign commerce shipped or
transported in or affecting interstate or foreign commerce by
any means, including by computer; or
(B) any material that contains child pornography that has
been mailed, or using any means or facility of interstate or
foreign commerce shipped or transported in or affecting
interstate or foreign commerce by any means, including by
computer;

(3) knowingly –
(A) reproduces any child pornography for distribution through
the mails, or using any means or facility of interstate or
foreign commerce or in or affecting interstate or foreign
commerce by any means, including by computer; or
(B) advertises, promotes, presents, distributes, or solicits
through the mails, or using any means or facility of interstate
or foreign commerce or in or affecting interstate or foreign
commerce by any means, including by computer, any material or
purported material in a manner that reflects the belief, or
that is intended to cause another to believe, that the material
or purported material is, or contains –
(i) an obscene visual depiction of a minor engaging in
sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in
sexually explicit conduct;

(4) either –
(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by, leased
to, or otherwise used by or under the control of the United
States Government, or in the Indian country (as defined in
section 1151), knowingly sells or possesses with the intent to
sell any child pornography; or
(B) knowingly sells or possesses with the intent to sell any
child pornography that has been mailed, or shipped or
transported using any means or facility of interstate or
foreign commerce or in or affecting interstate or foreign
commerce by any means, including by computer, or that was
produced using materials that have been mailed, or shipped or
transported in or affecting interstate or foreign commerce by
any means, including by computer;

(5) either –
(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by, leased
to, or otherwise used by or under the control of the United
States Government, or in the Indian country (as defined in
section 1151), knowingly possesses, or knowingly accesses with
intent to view, any book, magazine, periodical, film,
videotape, computer disk, or any other material that contains
an image of child pornography; or
(B) knowingly possesses, or knowingly accesses with intent to
view, any book, magazine, periodical, film, videotape, computer
disk, or any other material that contains an image of child
pornography that has been mailed, or shipped or transported
using any means or facility of interstate or foreign commerce
or in or affecting interstate or foreign commerce by any means,
including by computer, or that was produced using materials
that have been mailed, or shipped or transported in or
affecting interstate or foreign commerce by any means,
including by computer;

(6) knowingly distributes, offers, sends, or provides to a
minor any visual depiction, including any photograph, film,
video, picture, or computer generated image or picture, whether
made or produced by electronic, mechanical, or other means, where
such visual depiction is, or appears to be, of a minor engaging
in sexually explicit conduct –
(A) that has been mailed, shipped, or transported using any
means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce by any means,
including by computer;
(B) that was produced using materials that have been mailed,
shipped, or transported in or affecting interstate or foreign
commerce by any means, including by computer; or
(C) which distribution, offer, sending, or provision is
accomplished using the mails or any means or facility of
interstate or foreign commerce,

for purposes of inducing or persuading a minor to participate in
any activity that is illegal; or
(7) knowingly produces with intent to distribute, or
distributes, by any means, including a computer, in or affecting
interstate or foreign commerce, child pornography that is an
adapted or modified depiction of an identifiable minor.(!1)


shall be punished as provided in subsection (b).
(b)(1) Whoever violates, or attempts or conspires to violate,
paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be
fined under this title and imprisoned not less than 5 years and not
more than 20 years, but, if such person has a prior conviction
under this chapter, section 1591, chapter 71, chapter 109A, or
chapter 117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under the laws of any State
relating to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, or sex trafficking of
children, such person shall be fined under this title and
imprisoned for not less than 15 years nor more than 40 years.
(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or imprisoned not
more than 10 years, or both, but, if such person has a prior
conviction under this chapter, chapter 71, chapter 109A, or chapter
117, or under section 920 of title 10 (article 120 of the Uniform
Code of Military Justice), or under the laws of any State relating
to aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of child
pornography, such person shall be fined under this title and
imprisoned for not less than 10 years nor more than 20 years.
(3) Whoever violates, or attempts or conspires to violate,
subsection (a)(7) shall be fined under this title or imprisoned not
more than 15 years, or both.
(c) It shall be an affirmative defense to a charge of violating
paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that –
(1)(A) the alleged child pornography was produced using an
actual person or persons engaging in sexually explicit conduct;
and
(B) each such person was an adult at the time the material was
produced; or
(2) the alleged child pornography was not produced using any
actual minor or minors.

No affirmative defense under subsection (c)(2) shall be available
in any prosecution that involves child pornography as described in
section 2256(8)(C). A defendant may not assert an affirmative
defense to a charge of violating paragraph (1), (2), (3)(A), (4),
or (5) of subsection (a) unless, within the time provided for
filing pretrial motions or at such time prior to trial as the judge
may direct, but in no event later than 14 days before the
commencement of the trial, the defendant provides the court and the
United States with notice of the intent to assert such defense and
the substance of any expert or other specialized testimony or
evidence upon which the defendant intends to rely. If the defendant
fails to comply with this subsection, the court shall, absent a
finding of extraordinary circumstances that prevented timely
compliance, prohibit the defendant from asserting such defense to a
charge of violating paragraph (1), (2), (3)(A), (4), or (5) of
subsection (a) or presenting any evidence for which the defendant
has failed to provide proper and timely notice.
(d) Affirmative Defense. – It shall be an affirmative defense to
a charge of violating subsection (a)(5) that the defendant –
(1) possessed less than three images of child pornography; and
(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any image or copy thereof –
(A) took reasonable steps to destroy each such image; or
(B) reported the matter to a law enforcement agency and
afforded that agency access to each such image.

(e) Admissibility of Evidence. – On motion of the government, in
any prosecution under this chapter or section 1466A, except for
good cause shown, the name, address, social security number, or
other nonphysical identifying information, other than the age or
approximate age, of any minor who is depicted in any child
pornography shall not be admissible and may be redacted from any
otherwise admissible evidence, and the jury shall be instructed,
upon request of the United States, that it can draw no inference
from the absence of such evidence in deciding whether the child
pornography depicts an actual minor.
(f) Civil Remedies. –
(1) In general. – Any person aggrieved by reason of the conduct
prohibited under subsection (a) or (b) or section 1466A may
commence a civil action for the relief set forth in paragraph
(2).
(2) Relief. – In any action commenced in accordance with
paragraph (1), the court may award appropriate relief, including –

(A) temporary, preliminary, or permanent injunctive relief;
(B) compensatory and punitive damages; and
(C) the costs of the civil action and reasonable fees for
attorneys and expert witnesses.

(g) Child Exploitation Enterprises. –
(1) Whoever engages in a child exploitation enterprise shall be
fined under this title and imprisoned for any term of years not
less than 20 or for life.
(2) A person engages in a child exploitation enterprise for the
purposes of this section if the person violates section 1591,
section 1201 if the victim is a minor, or chapter 109A (involving
a minor victim), 110 (except for sections 2257 and 2257A), or 117
(involving a minor victim), as a part of a series of felony
violations constituting three or more separate incidents and
involving more than one victim, and commits those offenses in
concert with three or more other persons.

TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
PART I – CRIMES
CHAPTER 110 – SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

18 USC 2252A


(a) Any person who –
(1) knowingly transports or ships using any means or facility
of interstate or foreign commerce or in or affecting interstate
or foreign commerce by any means including by computer or mails,
any visual depiction, if –
(A) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;

(2) knowingly receives, or distributes, any visual depiction
using any means or facility of interstate or foreign commerce or
that has been mailed, or has been shipped or transported in or
affecting interstate or foreign commerce, or which contains
materials which have been mailed or so shipped or transported, by
any means including by computer, or knowingly reproduces any
visual depiction for distribution using any means or facility of
interstate or foreign commerce or in or affecting interstate or
foreign commerce or through the mails, if –
(A) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;

(3) either –
(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by, leased
to, or otherwise used by or under the control of the Government
of the United States, or in the Indian country as defined in
section 1151 of this title, knowingly sells or possesses with
intent to sell any visual depiction; or
(B) knowingly sells or possesses with intent to sell any
visual depiction that has been mailed, shipped, or transported
using any means or facility of interstate or foreign commerce,
or has been shipped or transported in or affecting interstate
or foreign commerce, or which was produced using materials
which have been mailed or so shipped or transported using any
means or facility of interstate or foreign commerce, including
by computer, if –
(i) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct; or

(4) either –
(A) in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by, leased
to, or otherwise used by or under the control of the Government
of the United States, or in the Indian country as defined in
section 1151 of this title, knowingly possesses, or knowingly
accesses with intent to view, 1 or more books, magazines,
periodicals, films, video tapes, or other matter which contain
any visual depiction; or
(B) knowingly possesses, or knowingly accesses with intent to
view, 1 or more books, magazines, periodicals, films, video
tapes, or other matter which contain any visual depiction that
has been mailed, or has been shipped or transported using any
means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce, or which was produced
using materials which have been mailed or so shipped or
transported, by any means including by computer, if –
(i) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct;

shall be punished as provided in subsection (b) of this section.
(b)(1) Whoever violates, or attempts or conspires to violate,
paragraph (1), (2), or (3) of subsection (a) shall be fined under
this title and imprisoned not less than 5 years and not more than
20 years, but if such person has a prior conviction under this
chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or
under section 920 of title 10 (article 120 of the Uniform Code of
Military Justice), or under the laws of any State relating to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of child
pornography, or sex trafficking of children, such person shall be
fined under this title and imprisoned for not less than 15 years
nor more than 40 years.
(2) Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this title or
imprisoned not more than 10 years, or both, but if such person has
a prior conviction under this chapter, chapter 71, chapter 109A, or
chapter 117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under the laws of any State
relating to aggravated sexual abuse, sexual abuse, or abusive
sexual conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 10 years nor more
than 20 years.
(c) Affirmative Defense. – It shall be an affirmative defense to
a charge of violating paragraph (4) of subsection (a) that the
defendant –
(1) possessed less than three matters containing any visual
depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any visual depiction or copy thereof –
(A) took reasonable steps to destroy each such visual
depiction; or
(B) reported the matter to a law enforcement agency and
afforded that agency access to each such visual depiction.

Tags: , , , ,