Review of 18 U.S.C. § 2252 Federal Laws and Defenses
Child pornography under 18 U.S.C. § 2252 is considered a severe federal crime in victimizing children. If you are convicted, you will face harsh punishments. The federal laws prohibiting child porn are the strictest in the national criminal justice system.
Suppose you are under investigation or already indicted and arrested for a federal crime related to child pornography. In this case, you need to retain a criminal defense lawyer with experience handling cases in a federal court to have the best chance at a favorable outcome.
Child pornography is described as any visual imagery depicting children under 18 years old in sexual activity for the primary purpose of sexual stimulation.
Child porn includes pictures or videos of minors engaging in explicit sexual activity or graphic nudity. Still, the person in the images or videos must be distinguishable as an actual minor.
Specifically, an ordinary person viewing the depiction would conclude that the report is an actual minor engaging in sexually explicit conduct as defined under 18 U.S.C. 2256.
Readers should note that child porn does not include visual depictions that are drawings, cartoons, paintings, or computer-generated images under federal law. Under 18 U.S.C. 2252, the report must be child porn with actual minors.
Virtual child porn was ruled protected by the first amendment by the United States Supreme Court in Ashcroft v. Free Speech Coalition, which is the primary reason federal statutes now include language about the actual depiction of real minors. Our California sex crime defense attorneys are providing a more detailed review below.
Definition of Child Pornography
As noted, Title 18 of the United States Code, Section 2252 makes it a crime to:
- “willfully possess, create, distribute, transport, ship, or produce child pornography involving minors engaging in sexually explicit conduct.”
The subsections within U.S.C. 2252 describe categories of conduct covered under this statute.
For instance, it's a crime to knowingly transport child pornography using interstate commerce, by computer or mail, visual depiction of a minor engaging in sexual activity.
This statute deals with both the receipt and the distribution of child pornography images, including the download of child porn online or sharing child porn images with other internet users through a file-sharing service.
Under 18 U.S.C. 2252, it's not only a federal crime to sell or possess child porn images with the intent to sell, but it's also illegal to have possession of child pornography.
Readers should note that most child porn crimes are prosecuted at the state level. There are jurisdictional requirements that must be met to charge someone with a federal crime.
Production of Child Porn Charges
There is a hierarchy of crimes when it comes to the Internet. The production of child porn charges involving any way, shape, or form is considered some of the most serious offenses that the federal government prosecutes.
Production of Child Pornography is one of the crimes towards the top of the most severe offenses in federal sex crimes. The more involved the government believes you are in producing and expanding child pornography, the more likely they will send you to federal prison for an extended period.
This harsh treatment relates to the government's view that the production of child pornography reaches more people on the Internet and is one of the driving forces behind the exploitation of children in America and across the world.
Production of child pornography carries a mandatory minimum prison sentence of fifteen years for each count you are convicted of in the federal setting.
Another important thing that I have noticed in defending federal sex crimes is that the statutes related to these crimes can and will be construed very broadly for the prosecutors trying to charge the most serious charges they can find.
In other words, I have seen production-related charges filed in cases where it simply is a massive stretch of the statute to either put pressure on a defendant to take a deal or to put the defendant away for a long time because of the perceived danger the prosecutor believes they pose to the public at the large.
Most defendants do not want to risk a sentence of 15 years, even if they have a potentially defensible case.
In my opinion, you want to hire a seasoned federal criminal defense attorney as soon as possible if you are charged with a federal sex offense because, in addition to facing many years in federal prison, you are also facing a potential lifetime of registration as a sex offender and lifetime supervision by the Federal Probation Department in these type of offenses.
When the potential consequences are so high and harsh, it is incumbent upon you to get to a reasonable attorney quickly to assert every defense and make sure that you end up with the best result possible.
It is not uncommon in my experience that the federal authorities do not have all of the facts surrounding an arrest. They jump to a conclusion instead of taking the time to look at all of the details and circumstances surrounding a case. This is where your criminal defense attorney comes in to show them your side and version of the story.
18 U.S. Code § 2252 Deals with Producing Child Porn
To be found guilty of producing child pornography, a person must knowingly transport or ship by way of interstate commerce (this can be the mail or on the Internet, for example) by producing a visual depiction that involves a minor engaged in sexual conduct.
The worst and most sophisticated form of production of child pornography involves an individual being concerned with making child pornography and sending it out for others to see. This will trigger a mandatory minimum sentence that the person must serve if convicted in the federal system.
This type of crime will be met with the harshest consequences if the government can prove that the allegations are valid against a defendant.
Another scenario where I have seen this coming up involves those individuals who ask a minor through a computer to take a nude photo of their private parts and ask them to take a video and send it to them.
This falls under the umbrella of the production of child pornography and can have the same devastating consequences as if the person had been there when the minor was involved with the show or making of the child pornography.
This area of sex crimes is one that prosecutors and judges take very seriously. If you have a federal case pending that charges these allegations, you should act quickly and find the best attorney you can be familiar with for the pre-filing defense of these types of cases.
Being charged with the production of child pornography or any other sex crime can cause a permanent mark on your record and make it so that you can not get a job or pursue any career in the future. Because the consequences can be so grave, it is imperative that you get a list of questions together and come and sit down and get all of your questions answered. It is also vital that when you leave my office, you have a game plan in place moving forward that ensures that you do not do or say anything that can cause you to be in more trouble.
Producing, distributing, or possessing child pornography is illegal in California and across the United States and punishable by imprisonment, fines, and mandatory sex offender registration. Production of child pornography also leads to charges of possession of child pornography, distribution of child pornography, internet pornography, child prostitution, and child trafficking. These can be some severe charges with life-altering consequences.
What are the Related Federal Crimes?
18 U.S.C. § 1461 – obscene mailing matter,
18 U.S.C. § 1462 – importing or transporting profane topics,
18 U.S.C. § 1465 – transporting improper issues for sale or distribution,
18 U.S.C. § 1470 – transferring obscene material to minors,
18 U.S.C. § 2251 – sexual exploitation of children,
18 U.S.C. § 2251A – selling and buying of children,
18 U.S.C. § 2252A – activities related to material containing child pornography,
18 U.S.C. § 2260 – producing sexually explicit depictions of a minor to import.
What are the Penalties?
A federal child pornography conviction will generally result in substantial prison time, huge fines, probation, and mandatory sex offender registration.
In cases where there are multiple materials depicting child pornography, you might be charged separately by the federal prosecutor for each one, and your sentence will increase with each subsequent charge.
If you are convicted of violating 18 U.S.C. 2252 federal child porn laws, you will most likely be required to register as a sex offender as part of your sentence, which comes with a stigma attached to this title.
Subsection (b) of Section 2252 provides penalties for violating other subsections. It says that:
- “whoever violates, or attempts or conspires to violate, paragraph (1), (2), or (3) of subsection (a) will be fined under this title and imprisoned not less than five years and not more than 20 years.
However, subsequent violations are punishable for up to 40 years in federal prison.
Any violators of subsection (a)(4) that deals mere possession are punishable by ten years.
However, if any illegal images portray children under 12, the maximum punishment is increased to 20 years in federal prison.
Convictions for subsequent offenses of mere possessions carry 10 to 20 years in prison.
Best Defenses for Federal Child Pornography Cases
As noted above, 18 U.S.C. 2252 has to do with those federal cases filed based on some child pornography charges.
That can come in many different forms. Usually, what we see is the federal government tracking somebody somehow.
For example, they've knocked over many websites distributing child pornography to people. Here is the usual process:
- They get the IP addresses of the people who are getting the child pornography sent to them;
- They end up getting a search warrant;
- They knock the person's door down and come in;
- They get him to make a statement;
- They seize all of their computers, laptops, etc., and
- Then, they have those forensically examined.
Ultimately, if there's child pornography, they charge them with possession of child pornography. Sometimes distribution, other charges depend on what they find when they grab the stuff.
Early Case Intervention and Important Defense Strategy Decisions
I usually get involved after the FBI or agents come and seize all of the devices. A lot of times, they don't arrest the person. They move pretty quickly, so they want to make sure they know exactly what is on those computers when they arrest somebody, so they're going to examine them first forensically, and then they'll decide what to charge in the case.
You want to get an attorney on the case right away. I contact any prosecutor who might be involved. I contact anyone associated with the patient, whether the agents or police, and I find out what the investigation is about.
I will give them my information. I talk to the prosecutor, and a lot of times, once they're done forensically examining everything, the prosecutor will call me back and tell me what they found.
We're either not going to charge your client, or we're going to set them at the state level, or we're going to charge your client at the federal level. Next, we would like to make arrangements for your client to surrender, and then we get you in there, and obviously, we will try to get some federal bond to get you out of custody and deal with the case.
It's always better to have an attorney working on your side. You don't want to try to do this yourself. You don't want to wait and see what happens. That's never a good strategy when the feds come knocking, especially when it involves child pornography.
What are the Best Legal Defenses?
Our criminal lawyers can use a variety of legal defenses to fight your federal child pornography charges, such as:
Possessing fewer than three images or videos – under 18 U.S.C. 2252, there is an affirmative defense to a charge of mere possession.
This complete defense applies to defendants who possessed less than three contraband images or videos and either notified police and gave them access or took steps to destroy them without sharing them with anyone else.
No knowledge or intent – The prosecutor has to prove you knowingly and willfully dealt with sexually explicit images of a minor.
They must show you knew the child was a minor and you accessed the content on purpose.
We might be able to argue you were reasonably unaware the person depicted in the images was under 18 years old.
Further, perhaps you accidentally accessed the images, as it's not uncommon to click on the wrong link or download an email attachment with malware or a virus without actually knowing what it contained.
I've been handling these cases now for 27 years at the federal level. If you need help, you've come to the right place. Take the first step and pick up the phone. Make the call and ask for a meeting with Ron Hedding. I stand at the ready to help you. We are located in Los Angeles County.