It is a federal and state crime to knowingly possess child pornography. Substantial federal sentencing enhancements result from distributing a visual depiction of a minor engaging in sexually explicit conduct through interstate commerce. The visual depiction can be distributed by any means, including through the mail or by using a computer. The key element that a prosecutor must prove in order to convict someone of distributing child pornography is that the person deliberately and affirmatively acted to deliver or distribute the material.
The Ninth Circuit Court of Appeals was recently asked to determine whether storing files on a personal computer, in file sharing software such as LimeWire, is a deliberate, affirmative act of distribution – or merely a passive act of possession. The Court ruled that it is an affirmative act of distribution. In that case, the defendant had technical skills and sufficient computer experience from which it was inferred that he willfully allowed the default setting in the shared folder to be set to sharing.
The Court’s opinion involved a man who was charged with distributing child pornography. The government alleged that the man had child pornography stored on his personal computer in his LimeWire share folder. LimeWire is a file sharing program that permits outside users to download material in the share folder to their computer. The defendant argued that he did not deliberately and affirmatively act to distribute or deliver the material on his computer, that he was passively possessing the material. The Court held that when a defendant “maintained child pornography in a shared folder, knew that doing so would allow others to download it, and another person actually downloaded it,” then it is an affirmative, deliberate act of distribution and not merely passive possession. The First, Eighth and Tenth Circuits have ruled accordingly. The fact that the images were incomplete did not matter.
California Penal Code Section 311 has similar language to the federal criminal code on distributing child pornography. California courts will likely agree with and apply this ruling in any state case where a person is similarly accused.
Being accused of any child pornography crime is a serious matter. A possession conviction can lead to 10 years in prison. A federal distribution conviction imposes a mandatory minimum of 5 years in prison with a 20 year maximum. Any child pornography conviction can require you to register as a sex offender for the rest of your life. This can adversely impact your ability to work, where you can live, and even whether you can associate with your own children or family. Having a skilled attorney represent you is critical. This office handles all types of matters related to pornography and sexual crimes in San Diego County. Contact us for a free consultation.
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