Federal Child Pornography Charges
Our office frequently handles child pornography cases that are brought in the federal courts for the Eastern District of New York and the Southern District of New York. Federal child pornography cases are typically brought by either the FBI or Homeland Security Investigations (sometimes known as ICE) after an investigation. There are numerous investigative techniques that federal agents employ to try to catch people in possession or distributing child pornography. These include:
- lurking in chat rooms and pretending to be either a child or someone interested in trading child pornography,
- downloading illegal child pornography files from your computer through a peer-to-peer network like BitTorrent, Kazaa, LimeWire or Vuze,
- setting up fake websites or taking over actual websites offering to distribute child pornography,
- investigating referrals from email providers that automatically scan email for illegal images,
- searching your electronic devices at an international border (including the airport) without a warrant, and
- obtaining and executing a warrant to search electronic devices in your home.
Once the investigation is complete, law enforcement will move in and make an arrest. If you are aware that you are under investigation, sometimes an attorney can persuade the prosecutors to let you self surrender, rather than being arrested at home or at work. Agents will almost always try to conduct an interview after the arrest. The FBI routinely records these interviews. At the interview, the agent is looking for two things: first, a confession to the crime he has arrested you for already. That makes it even easier for him to make his case and prove it was actually you using the computer or phone that was used to access child pornography. Second, the agents are looking for additional crimes, especially crimes against actual children. The interview can get very aggressive, with agents screaming at people they arrest that they "must have" touched their niece, stepson, or other child they were around. Agents are trained to believe that anyone who looks at child pornography has likely engaged in sexual conduct with a child and that it is appropriate to pressure people into "confessing" about their conduct. Many times, these coerced confessions turn out to be false.
If you are arrested, you should never make any statement of any kind to the agents. Statements to agents about child pornography can only hurt you. You should politely but firmly tell the arresting agents: "I do not want to talk to you. I want a lawyer right now." If you do that, they must stop trying to interrogate you.
After an arrest, you will be brought back to the agents' office for processing. They might continue to try to take a statement from you (needless to say, you should continue to decline). They may even offer to give you a polygraph test. You should decline. They will take your photograph, fingerprint you, and do a criminal history check. In most cases, you will be brought to see a federal magistrate judge the same day. The agents should allow you to call your family or a friend. If you can, you should clearly explain that you are under arrest, you need them to come to court to help with bail, and a defense attorney will be contacting them or to call a lawyer on your behalf. If you know a criminal defense lawyer with experience in federal cases, have them come to court. If you do no know a lawyer or cannot afford one, do not worry: a lawyer will be provided for you for the initial appearance. Do not panic that you do not have a lawyer right away and take your time finding a knowledgeable, experienced lawyer whom you trust.
At the first court appearance, the judge will set bail under the federal Bail Reform Act or make a determination that no condition or combination of conditions can reasonably assure you will return to court and not pose a danger to the community. Even if you do not get bail at the first appearance, you can almost always make a new application after you have identified "sureties" -- i.e. people who are willing to make a financial guarantee to the government that you will return to court.
After the initial appearance, your case will eventually be assigned to a district judge who will oversee the trial and, if you are convicted, will determine the sentence. The choice of district judge is random--the clerks pull the name out of a wheel--but in most cases it is the most important factor because the judge has nearly unlimited discretion in how to sentence you, if you are found guilty.
After a judge is selected, the case will proceed to discovery. Your lawyer will have access to the illegal images found. You will also get warrant applications, cell phone extractions, surveillance video or recordings, internet records, records of any statement you made, and other material gathered in the course of the investigation. You will not, however, get most statements of witnesses until just before trial.
Many federal child pornography cases resolve before trial via a guilty plea. You can request a proposed plea agreement, which usually contains stipulations about how the advisory sentence will be calculated under the U.S. Sentencing Guidelines. However, it is important to remember that these guideline calculations are not binding on the judge. Even with a plea agreement, you almost never know what your actual sentence will be until it is imposed (like everything, there are exceptions to this practice in rare cases). A more important aspect of the plea is whether it carries a mandatory minimum sentence--if it does, that is binding on the court. For example, merely possessing child pornography does not carry a mandatory minimum, but the mandatory minimum for receipt or distribution of child pornography is five years in prison. If you plea guilty to receipt or distribution, you ca be certain you will be sentenced to at least five years.
In many cases, if you are not inclined to plead guilty early in the proceeding, your attorney can file motions on your behalf seeking to exclude certain parts of the evidence. When these motions are successful (which is fairly rare), it makes it much harder for the government to prove its case.
In federal child pornography cases, if there is no guilty plea and the case is not dismissed on legal grounds, it will continue to trial. The trial is a big deal: the lawyers and the defendant spend many hours in court and many more hours preparing for court. In practice, child pornography trials are quite unusual because most defendants determine it is in their best interests to plead guilty. If you prevail at trial, the case against you is over. If you lose, you can still appeal.
Federal child pornography and sexual exploitation cases are quite different from state prosecutions and other kinds of federal cases. This overview just scratches the surface of the many issues that can arise. If you are arrested and charged (or even under investigation) by the feds for child pornography, speak to an experienced attorney as soon as you can. Feel free to call our office or review our blog posts covering new developments in child pornography prosecutions.