Computer child pornography is readily available on the internet. However, its possession in the form of photographs or pictures on a computer is a serious crime. Computer child pornography comes to the attention of law enforcement in many ways. A person may take a computer to be repaired and when the computer is picked up the police are waiting because the computer repair technician reported the computer child pornography. Police in Orlando are also posing as minors in chat rooms and on various web sites to develop suspects. Law enforcement also monitor shared sites such as Lime Wire and Kazaa for child pornography that is being distributed or downloaded. A warrant is then obtained and a person’s hard drive is seized and searched for child pornography. If child pornography is found, it could result in the owner of the computer, or any user of the computer, being charged with distribution or receipt of the child pornography.
The federal government considers the receipt and distribution of child pornography to be so serious that it is punished by a term of prison up to 20 years.
The receipt or distribution of child pornography carries with it a minimum of 5 years incarceration. Possession of child pornography with the intent to sell is likewise subject to a minimum of 5 years imprisonment with a maximum of 20 years.
The federal law makes it illegal to possess or to knowingly access with intent to view a book, magazine, periodical, film, videotape, computer disk, or any material that contains an image of child pornography that has been mailed or shipped or transported by any means including the internet. This carries a maximum term of imprisonment of 10 years.
When law enforcement finds child pornography on a computer, they normally assume that the computer owner intentionally downloaded the child pornography and therefore violated the law. In handling these cases we look carefully at this issue to find potential defenses which can include someone else’s use of the computer or accidental downloading of the images.
It is possible that a person would download a group of pictures and not realize that within the large group of pictures is child pornography. This would be a defense however, a full review of the hard drive by an expert is required.
The State of Florida likewise treats child pornography as a serious crime. The mere possession of child pornography, including hard copy pictures or computer images, as well as the transmission of child pornography is a felony punishable by up to 5 years in prison for each picture or image. Each picture and each computer image constitutes a separate offense. Therefore if a person only has 10 child pornography pictures on a hard drive, the maximum punishment of 50 years in prison is possible and Florida Criminal Punishment Code would call for a minimum sentence of 36- months incarceration.
It is common in computer child pornography to have numerous pictures. On the Florida Criminal Punishment Code Scoresheet, a person with 100 photographs could face 100 separate offenses each with a maximum of 5 years for a total maximum of 500 years. The sentencing scoresheets would call for a sentence of incarceration of 33 years. Confronting state or federal charges of possession or distribution of child pornography is a serious matter.
A case in Federal District Court in Orlando, Florida, handled by another law firm, resulted in a 50-year sentence. That case involved not only possession of child pornography but also a charge that the defendant generated child pornography by utilizing a 6-year old child. The 50 year sentence was imposed even though the defendant plead guilty and did not have a trial. Each case is dependent upon the facts and circumstance unique to the particular defendant not only as to guilt or innocence of the crime, but also to factors which may be useful in obtaining the lowest possible sentence in plea negotiations.
In the case noted above for which the defendant received a 50-year sentence, this firm cannot comment as to the basis for that sentence since the defendant was represented by another attorney. The impact of a plea of guilty in federal court where negotiated pleas are different than in state court, can often have results which are not appreciated by the defendant until it’s too late. The Federal Sentencing Guidelines are quite severe in the computation of the sentencing range.
For example, if the defendant has over 300 but less than 600 child pornography images on a computer and if the pictures involve sexual exploitation of minors or prepubescent minors who are not yet 12 years of age or are deemed sadistic or masochistic, the defendant can be facing a sentencing range of 11 to 14 years. The sentencing guidelines, while no longer mandatory, are still followed by many federal judges. There is however, a growing movement by district courts to recognize that the sentencing guidelines as they pertain to child pornography cases are not based upon logical or statistical studies to justify such severe sentences.
An individual confronted by an investigation or charges involving child pornography is in a serious situation whether in state or federal court. However, because of the nature of Federal Rules of Criminal Procedure and the practices of the prosecutors in plea negotiations, individuals who find themselves in federal court face a greater likelihood of receiving long periods of incarceration. For that reason it is important to have counsel experienced in handling child pornography cases and in dealing in federal criminal law if the case is in federal court. A state case can also result in a long prison sentence and so anyone under investigation or charged with a crime relating to child pornography should retain an experienced Orlando, Florida criminal defense attorney.
The Orlando defense attorneys at the Law Offices of Mark L. Horwitz, P.A. vigorously defend our clients liberty in cases involving computer child pornography.