Child Pornography Defense

Board Certified, Experienced Criminal Defense Lawyer Traveling to Court Across the State of Texas and Federal Courts Nationwide

John T. Floyd has over twenty years’ experience defending individuals suspected or accused of serious crimes involving child pornography.  Mr. Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization and has been rated as one of the best lawyers practicing criminal law by the prestigious Thomson Reuters rating service with his inclusion in their list of Super Lawyers.  He has extensive experience representing individuals accused of serious sex crimes in criminal courts across Texas and in federal courts nationwide.  He is a noted expert on issues related to child pornography, online solicitation and sex crimes involving children and has been featured in media throughout the country for his unique experience advocating for the falsely accused.

Feds Make Child Pornography Prosecutions a Priority

The FBI created its Violent Crimes Against Children section in 2000. Between 2001 and 2013, the agency arrested more than 23,000 individuals for child pornography/child exploitation offenses.  These investigations led to nearly 17,000 convictions, most of which were with accompanied serious prison time.

National Center for Missing and Exploited Children

The National Center for Missing and Exploited Children (NCMEC), a non-governmental organization tasked by Congress to identify abused children, receives an average of 23,500 reports about child pornography each week.

Federal Child Pornography Investigations

The FBI and ICE have made investigating child pornography cases a top priority and has publicly designated child pornography as one of the fastest growing criminal enterprises in the United States.  The FBI has also warned the public that the resources needed to investigate and prosecute these case will continue to grow. As part of their investigative strategy, the FBI has mounted aggressive “peer to peer” detection techniques and questionable “honey hole” operations. The FBI has found itself under increased scrutiny for allowing child pornography website over which it has seized control to continue to operate in order to locate those who would access this illegal material.

The NCMEC reports that at any given time in this country there are 50,000 people engaged in “trading illegal images” of children, and its organization has collected more than 100 million images and videos of suspected child abuse.

The NCMEC reports that 40 percent of all child sexual abuse is committed by a parent of the child and approximately 65 percent of all child pornography produced in this country is done by parents or a family friend.

Massive Federal Resources Dedicated to Investigations and Prosecutions

Given the public’s justifiable commitment to protect our children, law enforcement has dedicated the massive investigative resources of thousands of federal and state law enforcement agencies in this country to identifying those who possess this illegal material and relentlessly locating and apprehending those involved in the production and distribution of child pornography.

Regardless of the source and motives behind child pornography, it is a serious criminal offense at either the federal or state level. The penalties associated with child pornography-related offenses are severe.

Do Not Talk to Law Enforcement Without a Lawyer

If you become a suspect in a child pornography offense, do not speak or cooperate with law enforcement until you have spoken to an attorney. Anything you say or do prior to an actual arrest can be used against you in a court of law. These skilled federal investigators are trained on the psychological characteristics of those who possess child pornography and understand the shame involved in this offense and the compelling need to confess and repent.  It is therefore standard law enforcement practice to locate suspects and make a surprise visit to request an interview.  It is our advice to anyone contacted by law enforcement regarding this most serious offense to politely refuse to discuss these matters until counsel is present.

Federal Laws Prohibiting Child Pornography

18 U.S.C. § 2256 defines child pornography as “any visual depiction” of a minor under 18 years of age engaged “sexually explicit conduct.”

Sexually explicit conduct in relation to this statutory definition is the actual or simulated:

• Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
• Bestiality;
• Masturbation;
• Sadistic or masochistic abuse; or
• Lascivious exhibition of the genitals or public area of any person.

There are six primary federal statutes dealing with child pornography-related offenses:

18 U.S.C. § 2251 – Sexual Exploitation of Children (production of child pornography);

18 U.S.C. § 2251A – Buying and Selling of Children;

18 U.S.C. § 2252 – Certain activities relating to material involving the sexual exploitation of minors (possession, distribution, and receipt of child pornography);

18 U.S.C. § 2252A – Certain activities relating to material constituting or containing child pornography.

18 U.S.C. § 2260 – Production of sexually explicit depictions of a minor for importation into the United States.

18 U.S.C. § 1466A – Obscene visual representations of the sexual abuse of children.

• § 2252 and 2252A deal with the possession, receipt, distribution, transportation with intent to distribute or sell child pornography. The penalties for these offenses are:

• Simple possession: No mandatory minimum with a maximum ten years for first offense; and a 10-year minimum with a 20-year maximum when offender has a prior sex offense conviction.
• Transportation, receipt, distribution, possession with intent to distribute or sell: 5-year minimum with a maximum of twenty years for first offense; and a 15-year minimum and 40-year maximum when offender has a prior sex offense conviction.

• 1466A deals with the possession, receipt, distribution or production of obscene visual representations of the sexual abuse of children. Penalties for these offenses are:

• Simple possession: no mandatory minimum with a maximum of ten years for first offense; and a 10-year minimum with a 20-year maximum when offender has a prior sex offense conviction.
• Receipt, distribution or production: 5-year minimum with a 20-year maximum for first offenses; and a 15-year minimum with a 40-year maximum when offender has a prior sex offense conviction.

Federal Sentencing in Child Pornography Cases

On May 19, 2011, former U.S. Attorney General Eric Holder told the National Strategy Conference on Combating Child Exploitation in San Jose, California that:

“Unfortunately, we’ve also seen a historic rise in the distribution of child pornography, in the number of images being shared online, and in the level of violence associated with child exploitation and sexual abuse crimes. Tragically, the only place we’ve seen a decrease is in the age of victims.”

Difficult Distinction Between Offenders Who Act Out and Those Who Simply Possess

In a 2012 report to Congress titled on “Federal Child Pornography Offenses,” the U.S. Sentencing Commission informed Congress that “not all child pornography offenders are pedophiles or engage in other sex offending.”

The Commission added that only one in three child pornography offenders engaged in “sexually dangerous behavior.”

Federal Sentences for Child Pornography on the Rise

Between 1997 and 2010, the average sentence in child pornography cases increased by 500 percent rising from 20.6 months to 118 months.

In a July 13, 2009 letter to the ABA Journal, Troy Stabenow, an Assistant Federal Public Defender in the Western District of Missouri, pointed out that the increased sentencing in child pornography cases created the “absurd result” in which “lower punishments” were given to those who attempted “to engage children in sex acts than for those who only possessed and swapped pictures.”

Factors to be Considered in Sentencing

In 2005, the U.S. Supreme in United States v. Booker held the U.S. Sentencing Guidelines are advisory rather than mandatory. Booker effectively created a three-step methodology for sentencing courts to follow in determining the appropriate punishment in a criminal case:

• First, apply the Guidelines to determine the advisory sentence range which generally begins with a review of the Presentence Report prepared by the U.S. Probation Department—the agency charged with the responsibility of interpreting the Guidelines to determine the advisory sentence.
• Second, determine if a Guidelines departure applies, e.g., a departure based on substantial assistance a defendant has provided to the Government.
• Third, determine if a non-Guideline sentence, referred to as a “variance,” is appropriate following consideration of the sentencing factors Congress set forth in 18 U.S.C. § 3553(a)—a process that begins with the premise that a Guidelines-recommended sentence does not enjoy a presumption of reasonableness.

Regardless of whether the sentencing court decides to impose a sentence above, below or within the applicable Guidelines range, the judge must make written findings for his/her reasons in imposing the ultimate sentence. The judge may disagree with or even reject policy judgments of the Sentencing Commission and its Guidelines, but his or her written findings must address why the Guidelines reflect unsound judgment; in other words, they generally do not treat certain defendant characteristics in a proper way.

The sentencing judge’s role is not subordinate to the Sentencing Commission.

Thus, if the judge determines, after considering the § 3553(a) factors, that a defendant deserves a sentence lower than the Guideline range, he or she has the discretion to impose a lower sentence.

18 U.S.C. § 3661 provides that “no limitation shall be placed on the information concerning the background, character, and conduct of the person convicted of an offense which a court of the United States may receive and consider for imposing an appropriate sentence.”

The federal appellate courts have interpreted Booker, and its progeny, to mean that it is not a severe sentence that promotes respect for the law but rather an appropriate sentence.

• 3553(a)(2) sets for the general purposes of the Sentencing Reform Act which require sentences:

• reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
• afford adequate deterrence to criminal conduct;
• protect the public from further crimes by the defendant; and
• provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

Difficulty in Sentencing Possession Cases

Sentencing is difficult work. Recent reports have revealed that as many as 7 out of ten federal district court judges believe sentences in child pornography cases are too severe.

This observation was made nearly a decade ago by Northern District of Ohio U.S. District Court Judge Kathleen McDonald O’Malley in United States v. Stern in which she discussed the need to avoid unwarranted sentencing disparities.

“The Court has carefully considered an extremely wide variety of opinions from across the country as well as the National Guideline Statistics … The Court is deeply troubled by its findings: ‘anyone seriously concerned about federal sentencing disparities [must begin by] taking a very close look at federal child porn cases.’ Professor Douglas A. Berman, Is There an Ivy-Leaguer Exception to Federal Child Porn Charges? (October 22, 2008).

“Based on the Court’s review of the case law, it is clear that ‘one would be hard pressed to find a consistent set of principles to explain exactly why some federal child porn defendants face decades in federal prison, some face many years in federal prison, while others only end up facing months.’ This Court is ‘struck by the inconsistency in the way apparently similar cases are charged and sentenced.’

“In short, the national sentencing landscape presents a picture of injustice. In the absence of coherent and defensible Guidelines, district courts are left without a meaningful baseline from which they can apply sentencing principles. The resulting vacuum has created a sentencing procedure that sometimes can appear to reflect the policy views of a given court rather than the application of a coherent set of principles to an individualized situation. Individual criminal sentences are not the proper forum for an expansive dialogue about the principles of criminal justice. Such conversation, though vital, should not take place here—lives are altered each and every time a district court issues a sentence: this not a theoretical exercise. Yet, this Court is mindful of the appropriate scope of its authority—it must take the law as it finds it.

“The Court, accordingly, has attempted to ensure that its sentence avoids unwarranted sentencing disparities to the greatest degree possible while still hewing to its view that this individual defendant must be punished with a term of imprisonment.”

Average Sentence for Child Pornography Higher Than All Crimes Except Murder

It has been reported that the average federal sentence in child pornography cases is higher than all other offenses except murder, including an average of six months higher than sentences for actual sexual abuse of children.

Restitution in Child Pornography Cases

Restitution in child pornography cases has seriously troubled the Federal courts over the last decade.

Section 2259 of Title 18, United States Code, clearly grants the victims of child pornography the right to restitution. The bone of legal contention has been exactly how to determine the amount of restitution the victims of child pornography are entitled.

Before 2014, the courts at both the district court and appellate courts level were all over the map on how the restitution determinations should be made.

U.S. Supreme Court Hears Child Pornography Restitution Case

In 2014, the U.S. Supreme Court in Paroline v. United States entered the child pornography restitution fray in order to settle the issue of “what causal relationship must be established between the defendant’s conduct and a victim’s losses for purpose of determining the right to, and the amount of, restitution under § 2259.”

The Court held that a defendant’s possession of child pornography must be the proximate cause of any harm suffered by the victim(s) depicted in the pornographic images. The Court said the “primary problem” in these cases is to determine just how much each defendant owes to a victim whose pornographic images have been possessed, and distributed, by hundreds, if not thousands, of defendants.

After rejecting the “traditional way to prove one event was a factual cause of another,” the Court adopted what it called an “aggregate causation” theory.

This theory is premised on the notion that while a single defendant who possesses or distributes child pornography undoubtedly “plays a part in sustaining and aggravating this tragedy,” he should not be held liable for “the conduct of thousands of geographically and temporarily distant offenders acting independently, and with whom the defendant has no contact.”

Defendant’s Role in Victim’s Losses

The Court then embraced this model for assessing restitution liability against an individual defendant:

“Where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with defendant’s relative role in the causal process that underlies the victim’s losses.”

On February 10, 2015, the Tenth Circuit Court of Appeals in United States v. Dunn had an opportunity to apply the Paroline model.

After being convicted of receiving, possessing and distributing child pornography, the defendant was sentenced to 144 months of imprisonment and 25 years of supervised release. A Utah federal district court judge then assessed a $583,955 restitution award against the defendant. Evidence presented by prosecutors at defendant’s trial revealed he had received, shared, and possessed 20 child pornographic images.

Vicky’s Restitution Cases

Prior to sentencing, a representative of the University of Utah Law Clinic filed a Section 2259 restitution request for one of the victims in the batch of images possessed by defendant. The victim is identified as “Vicky.” She has become a fixture in child pornography cases across the nation, filing dozens, if not hundreds, of Section 2259 restitution requests when her image(s) were discovered in the possession of defendants charged in child pornography cases. She has sought, and received, scores of judgments in the hundreds of thousands of dollars.

She specifically sought, and received, the $583,955 judgment against the defendant in the Dunn case.

Attorneys for the defendant requested that representatives for Vicky “produce an up-to-date economic report establishing [her] losses and a causal link between [the defendant’s] conduct and those losses.” T

The sentencing judge denied the request, finding that all of Vicky’s losses were “proximately caused” by defendant.

The Tenth Circuit disagreed, finding that the judge’s restitution order clearly violated the mandate of Paroline.

The appeals court pointed out that the Paroline court instructed the district courts to assess the available evidence to determine the role each individual defendant’s conduct plays in the “broader causal process that produced the victim’s losses.”

Measured Losses Attributable to Defendant

In other words, individual defendants cannot be held liable for all of Vicky’s losses. Rather the liability for her losses must be measured, or shared, by all the defendants involved in the receipt, possession, and distribution of her images.

How does this assessment process work?

The Supreme Court said that after determining “the amount of the victim’s losses caused by the continuing traffic of the victim’s images,” the district court should consider, among other things:

“ … the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role.”

Applying this standard, the Tenth Circuit had no choice but to vacate the trial judge’s restitution order and remand the defendant’s case for further proceedings.

Essentially, a sentencing judge now considering a Section 2259 restitution request must confine his/her assessment analysis, as the Tenth Circuit noted, to the “measure of losses” caused by each individual defendant—not the theory that each individual defendant must pay the total costs of the victim’s losses thereby allowing a victim to collect the same losses from hundreds, if not thousands, of defendants.

Federal Supervised Release

Most federal sentences include some term of supervised release.

In 1984, Congress enacted the Sentencing Reform Act (SRA) which eliminated parole from the federal sentencing scheme. Parole was replaced with supervised release—a first cousin of probation which is served after release from prison.

18 U.S.C. § 3583 requires supervised release in some cases, especially those of a violent or sexual nature. The statute instructs federal judges to order supervised release in all felony and Class A misdemeanor cases.

A sentencing judge must impose conditions when he or she orders supervised release. Some conditions are mandated by § 3583(d). A judge has the discretion to impose any other conditions if the following criteria are met:

• The condition is “a discretionary condition of probation set forth in § 3563;
• The judge must consider the condition appropriate so long as the condition is “reasonably related” to the factors set forth in § 3553(a)(1) and (a)(2)(B-D);
• The condition involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a)(2)(B-D); and
• The condition is consistent with any pertinent policy statement issued by the Commission under 28 U.S.C. § 941(a).

The Sentencing Guidelines Manual also sets forth required and suggestions conditions.

Judge’s Discretion to Set Special Conditions

Section 5D1.3(e) list additional “special” conditions the judge may feel are appropriate on a case-by-case basis.

Too often sentencing judges exercise their discretion in a haphazard manner.

For example, one study showed that between 2005 and 2009 federal judges imposed mandatory release conditions in 99.1 percent of cases in which supervised release was not mandated by statute. The average term of these releases was 35 months.

This misuse of this sentencing discretion has created substantial problems in the federal sentencing scheme.

The problems have become so endemic in the sentencing scheme that the Seventh Circuit Court of Appeals in 2014 found the need to intervene and provide specific guidance to sentencing judges under its jurisdiction about the kinds of conditions that can be imposed on supervised release.

In a consolidated pair of cases, United States v. Siegel and United States v. Norfleet (May 29, 2014), the appeals court offered this opening explanation about why it elected to intervene:

“… there are serious problems with how some district judges are handling discretionary conditions of supervised release at sentencing. Two of the problems are relatively minor, and we mention them quickly to get them out of the way. One is the number—thirty—and the other the variety of the listed discretionary conditions. The sheer number may induce haste in the judge’s evaluation of the probation service’s recommendations and is doubtless a factor in the frequent failure of judges to apply the sentencing factors in section 3553(a) to all the recommended conditions included in the sentence.

“Because conditions of supervised release, though imposed at sentencing, do not become operational until the defendant is released, the judge has to guess what conditions are likely to make sense when the defendant is released. The longer the sentence, the less likely the guess is to prove accurate. Conditions that may seem sensible at sentencing may not be sensible many years later, when the defendant is finally released from prison. And while it’s true that conditions of supervised release can be modified at any time, 18 U.S.C. § 3583(e)(2), modification is a bother for the judge, especially when, as must be common in cases involving very long sentences, modification becomes the responsibility of the sentencing judge’s successor because the sentencing judge has retired in the meantime.

“A more serious problem with the current system is that … a number of the listed conditions, along with a number of conditions that judges modify or invent, are vague.

“Another serious problem is the difficulty of predicting recidivism. Reducing recidivism is the main purpose of supervised release, though some of the conditions of supervised release are intended to help the released prisoner adjust to life on the outside even if there is no worry that without them he would be likely to commit crimes; it may be apparent that by the time he’s released from prison he will be too old or infirm to resume a life of crime.

In the Siegel/Norfleet cases, the appeals court after an exhaustive analysis found that the “numerous conditions of supervised release” of the two defendants were improper because the conditions were “inappropriate for the specific defendants on their respective offenses of child sexual abuse and drug distribution”—conditions that were “inadequately defined” or “were imposed without the sentencing judge’s having justified them by reference to the statutory sentencing factors.”

Special Conditions Reflect Judge’s Biases

More often than not, the so-called “special” conditions reflect the judge’s personal biases rather than any legitimate sentencing objective.

This was illustrated in a 2015 decision by the Fifth Circuit Court of Appeals in United States v. Caravayo.

In that case, the defendant pled guilty to possession of child pornography. A sentence of 92 months was imposed followed by 10 years of supervised release. The defendant completed his 92 month sentence in November 2012 and began serving his supervised release.

In May 2014, the government filed a motion to revoke defendant’s supervised release. The motion alleged a series of violations, all of which were dropped except for a Texas misdemeanor conviction for Failure to Identify. Defendant admitted the conviction. The judge revoked his supervised release, ordered him to serve 90 days of imprisonment, and re-imposed the balance of his original 10-year supervised release with all its conditions.

One of those conditions prohibited defendant from dating any “women/men who have children under the age of eighteen.” At the revocation hearing, defendant’s attorney objected to this condition, arguing that it violated defendant’s First Amendment right to free association.

Defense counsel correctly argued that the court could impose a “more narrowly tailored” condition that would achieve the same purpose, including one of his other conditions that prohibited unsupervised contact with minors.

The sentencing judge overruled the objection. Defense counsel appealed to the Fifth Circuit.

The appeals court began its legal analysis with this observation:

“Under § 3583(d), a discretionary condition must be ‘reasonably related’ to one of the four factors under § 3553(a): (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the deterrence of criminal conduct; (3) the protection of the public  from further crimes of the defendant; and (4) the provisions of needed education or vocational training, medical care, or other correctional treatment to the defendant … The condition must also impose no greater deprivation of liberty than it reasonably necessary to advance deterrence, protect the public from the defendant, or advance the defendant’s correctional needs.”

The appeals court found that the special condition barring defendant from engaging in a relationship with another adult who has children violated his First Amendment right to “enter into and maintain certain intimate relationships against undue intrusion by the State.”

Finding that the sentencing judge had made no “factual findings” that this condition was reasonably related to any of the § 3553(a) factors, the appeals court vacated defendant’s sentence and remanded his case back to the district court for resentencing.

The Caravayo case reflects the misuse of sentencing discretion.

Federal law and the Sentencing Guidelines list mandatory conditions and suggest others. But it is the discretion federal judges enjoy to impose “special conditions” that can, and frequently does, create absurd, and patently unconstitutional, conditions like the one imposed in the Caravayo case.

Texas Child Pornography Laws

Possession or Promotion

As with federal law, Texas law prohibits the promotion, use, or exploitation of children under the age of 18 for performance, employment or conduct of sexual acts or depictions of acts of a sexual nature.

Texas Penal Code § 43.25(a)(2) defines “sexual conduct” as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.”

All child pornography-related offenses are set forth in the Texas Penal Code § 43.26, the most common of which is called “possession or promotion of child pornography.” To be convicted of this offense, the State must prove three essential elements:

1. Knowingly or intentionally
2. Possessing or accessing to view
3. Visual material that the individual knows visually depicts a child younger than 18 years at the time the image was made who is engaging in sexual conduct.

Possession of child pornography in Texas is a third degree felony punishable by a sentence of between two and 10 years with a possible fine up to $10,000. The offense becomes a second degree felony punishable by a sentence of between two and 20 years with a possible fine up to $10,000 if it shown that the possessor has the intent to either promote or distribute the child pornography.

Sentencing Enhancements

Like the federal sentencing scheme, Texas has a serious enhancement sentencing scheme, especially in sex offense cases where there are prior sex offense convictions.

Automatic Life Sentence

In March 2013, the Texas Court of Criminal Appeals in Anderson v. State explained this enhanced sentencing scheme:

“Section 12.42 of the Texas Penal Code provides for enhanced punishments for those who are convicted of first, second, or third-degree felony offenses and who have prior non-state-jail felony convictions. The enhancement statute increases the punishment range from a third-degree felony to a second-degree felony or a second-degree felony to a first-degree felony for one prior felony conviction. It also enhances a first-degree felony (5-99 years or life) to an enhanced first-degree (15-99 years or life), if the defendant has one prior felony convictions. If a defendant convicted of any non-state-jail felony has two prior, sequential felony convictions, the minimum sentence is 25 years and the maximum is 99 years or life; this is the Texas ‘three strikes’ law. However, if a defendant is convicted of certain sexual offenses and he has a prior conviction for one of the sexual offenses listed in Section 12.42(c)(2)(B), the punishment is an automatic life sentence. The enhancement statute ‘effectively creates a two-strikes policy for repeat sex offenders in Texas, embodying the legislature’s intent to treat repeat sex offenders more harshly than other offenders. The legislature also mandated the automatic ‘two strikes’ enhancement to life imprisonment if the ‘has previously been convicted of an offense under the laws of another state containing elements that are substantially similar to the elements of an [enumerated Texas] offense.’”

Don’t Mess with Texas’ Children

In effect, sex offenses in Texas, including possession of child pornography, are considered the worse class of criminal offenses.

Do Not Talk to Federal or State Investigators Without a Lawyer

John T. Floyd is an experienced criminal defense lawyer defending individuals accused of committing serious crimes, including possession and promotion of illegal child pornography and other sex crimes involving children.  John T. Floyd practices before all State and Federal Criminal Courts in Houston, throughout the State of Texas and the United States.