Award-Winning Philadelphia Child Pornography Attorneys | Fighting Pennsylvania, New Jersey, and Federal Child Porn Charges

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There Are Defenses to Child Pornography Charges

When the police or federal agents are investigating files on your computer, the criminal defense lawyers of Goldstein Mehta LLC stand ready to fight for your rights and obtain results in even the most serious of cases. There are defenses to child pornography charges. Investigators must obtain evidence legally or it could be suppressed, and the prosecution must always prove that the defendant possessed or distributed child pornography beyond a reasonable doubt.

There are few charges with greater potential consequences and more of a social stigma than child pornography charges. All sex crimes are taken very seriously in both the Pennsylvania and federal criminal justice systems, but perhaps none have more potential for life-shattering consequences than a possession or distribution of child pornography charge. Our experienced criminal lawyers have the knowledge and skills necessary to help with both state and federal cases. We understand what you are going through when you are facing these types of charges, and we do not judge or assume you are guilty. We will do everything in our power to fight for you and keep you off of the Megan's Law registry. We offer a complimentary 15-minute, judgment-free criminal defense strategy session to anyone who is facing child pornography charges or who may be under investigation by state or federal law enforcement. 

Pennsylvania Child Pornography Laws

Under 18 Pa.C.S. § 6312, it is a crime to view, download, distribute, or produce child pornography. Even merely viewing child pornography, without production or distribution, is a felony of the third degree for a first offense. A second offense is a felony of the second degree. Production and distribution of child pornography may be a first-degree felony depending on the circumstances and whether the defendant has any prior convictions.

It is not a defense to a child porn possession charge that the defendant believed the minor to be of age or that the minor stated he or she was of age. Although mistake of age is not a defense, there are defenses in that Pennsylvania law requires that you knowingly or intentionally come into contact with prohibited material. It is not a crime to view something by accident, but given the consequences, it is still best to take steps to avoid any misunderstandings or questionable material. 

Federal Child Pornography Charges

Criminal Defense Attorney Zak T. Goldstein, Esq.

Criminal Defense Attorney Zak T. Goldstein, Esq.

Although the jurisdiction of the federal government is limited to the regulation of interstate or foreign commerce, federal law criminalizes virtually anything to do with child pornography. This is because it is extremely rare that the pornography itself or the media on which it is stored has not in some way traveled through or impacted interstate or foreign commerce. For example, any child pornography on the internet, on DVDs, or on a computer originated or traveled in interstate or foreign commerce, and therefore the federal government will have jurisdiction.

Various federal statutes (18 U.S.C. § 2251, 18 U.S.C. § 2252, and 18 U.S.C. § 2252A) criminalize the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce. Specifically, Section 2251 makes it illegal to persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct for purposes of producing visual depictions of that conduct. Federal law also makes it illegal to attempt or conspire to commit a child pornography offense.  

Additionally, 18 U.S.C. § 2251(A) specifically prohibits any parent, legal guardian or other person in custody or control of a minor under the age of 18, to buy, sell, or transfer custody of that minor for purposes of producing child pornography. Finally, 18 U.S.C. § 2260 prohibits any persons outside of the United States to knowingly produce, receive, transport, ship, or distribute child pornography with intent to import or transmit the visual depiction into the United States.

It is not a defense to child pornography charges that the defendant did not realize the true age of the person in the material. The age of consent in the state in which the defendant viewed the material is also not a defense. Finally, a conviction does not necessarily require that the images or videos actually showed minors engaged in sex acts. Sexually suggestive, nude photos may be enough for federal prosecutors to obtain a conviction.

Why did the Feds pick up my child pornography case instead of the State or local Police?

Anyone who violates federal and state child pornography laws may be prosecuted by either the federal or state government. There is a great deal of overlap between the state and federal statutes as both criminalize the viewing, distribution, and production of child pornography. There is often not any particular rhyme or reason for why a particular defendant will face charges in the federal system instead of the state system.

However, it is common for the federal government to seize larger interstate or foreign servers as part of investigations along with state or foreign authorities. Once the feds have seized the server, they will obtain warrants and subpoenas in order to trace the activity on the server back to the computers which downloaded or uploaded the material.

Therefore, it is probably more common for the federal authorities to become involved in a child porn case when the material was stored or accessed on foreign servers. It is also common to see the feds involved in larger cases or cases more focused on the production and distribution of the material. State and local authorities are more likely to target people who merely downloaded it through peer-to-peer networks. Delaware County, in particular, has a very active child pornography task force which tracks the sharing of child pornography on peer-to-peer file sharing websites. Likewise, the Pennsylvania State Police conduct similar investigations on file sharing networks. 

Penalties for Possession and Distribution of Child Porn

The penalties for the possession and/or distribution of child pornography are serious. Convictions may result in lengthy jail sentences and decades of Megan’s Law registration as a sex offender. They may also result in the loss of employment and serious damage to your reputation.  

First, in both the Philadelphia and federal courts, child pornography charges present a real risk of jail time. For the most part, Pennsylvania no longer has mandatory minimum sentences for child pornography due to a recent decision of the Pennsylvania Supreme Court. However, due to the stigma of child pornography and out of concern for the victims depicted in the material, state judges are particularly reluctant to show leniency or mercy towards a defendant who is convicted of these charges. This means that a state court conviction may result in lengthy sentences of incarceration and court supervision. Even though mandatory minimums do not currently apply, the legislature often seems poised to reinstate mandatory minimums for a wide variety of offenses. Further, the suggested sentences called for by the Pennsylvania sentencing guidelines are usually state prison sentences because there are enhancements to the guidelines for child abuse cases. The enhancements result in higher recommended sentences under the Pennsylvania Sentencing Guidelines based on the number of images and the nature of the material. 

Federal Child Pornography Mandatory Minimums

In the federal system, potentially devastating mandatory minimums continue to exist. It is not unheard of for federal defendants to receive five or ten years in jail or more. For example, a five-year mandatory minimum sentence applies to a first-time defendant with absolutely no prior record who is convicted of transporting child pornography in interstate or foreign commerce under 18 U.S.C. § 2252. This means that simply downloading images from a website or peer-to-peer network could result in a five-year mandatory minimum sentence in the federal system. The mandatory penalties increase depending on the nature of the images and whether there are prior convictions. There are even some circumstances in which a convicted defendant may face a mandatory minimum of life in prison in the federal system.  

Second, Pennsylvania (and every other state) maintains a registry of convicted sex offenders under Megan’s Law. Megan’s Law includes registration requirements for those convicted of possession of child pornography in the state and federal system. Currently, Pennsylvania's Megan’s Law makes the possession of child pornography a Tier I offense. This means that if you are convicted, you will have to register annually for 15-years. This will come up on background checks, and your picture and other biographical information will be posted on the State Police website for public viewing. Until recently, prosecutors would charge multiple counts of possession against defendants who possessed more than one image or video. This would have the effect of converting possession of child pornography from a Tier I to a Tier III, lifetime registration offense because of language in the Megan's Law statute which makes someone convicted of more than one offense a Tier III offender. However, the Pennsylvania Supreme Court recently held that the convictions must be for separate instances of conduct and part of separate prosecutions in order to convert a Tier I offense into a Tier III offense.   

Third, between the combination of incarceration and probation and the stigma of Megan’s Law registration, it can become extremely difficult to obtain employment or live a normal life. A conviction for a sex offense is incredibly damaging to a person’s reputation, and it may lead to a prohibition on having any unsupervised contact with children. Therefore, child pornography charges are extremely serious and require an aggressive defense.

Defenses to Child Pornography Charges

Our Philadelphia Criminal Defense Lawyers offer a 15-minute, complimentary criminal defense strategy session. We know that picking up the phone and calling an attorney can be intimidating, so in this video, I explain what you can expect when you call us. Call 267-225-2545 to speak with one of our criminal defense lawyers.

We know that getting help with child pornography charges is difficult and frightening. You may be concerned about judgment or whether you have absolute confidentiality for what you tell your attorney. That is why we offer a judgment-free consultation to each potential client, and under Pennsylvania and federal law, communications with an attorney or potential attorney about a criminal case or investigation are subject to an absolute attorney-client privilege. Everything you tell us during a consultation or after retaining us will be kept completely confidential.

It is critical that if you are facing charges, you speak with us as soon as possible. There are often defenses in child pornography cases, and our experienced criminal defense lawyers will determine the best possible defense for you.

The Most Important Thing to Remember: You Have The Right to Remain Silent

First, without a confession, it is often difficult for prosecutors to prove beyond a reasonable doubt to whom the material belonged. Many computers, phones, and other devices with electronic storage are inherently mobile and may be used by multiple people in the home as well as other friends, family, and neighbors. If the police cannot prove that you were the only user of the computer in question, they may not be able to show that you knew about or possessed the illegal material. Given the stakes involved, it is absolutely critical that if the police begin asking questions about material on your computer, you tell them that you want to speak with your lawyer before giving any statements. There is a common urge to try to explain things away or a belief that the police will go easy on you if you cooperate and admit to ownership of the material, but this simply does not happen. Therefore, the most important thing to remember when under investigation is that you have the right to remain silent, and you should always invoke that right until you have spoken with a lawyer. The prosecution may very well be unable to demonstrate to whom a particular computer or hard drive belonged, and when the circumstances call for it, our lawyers can retain forensic investigators to determine who else had access to the computer or storage device in question.  

Second, child pornography could end up on a computer through a virus or malware which was downloaded from the internet. Under Pennsylvania law, the defendant must have knowingly or intentionally possessed the files in order for the Commonwealth to obtain a conviction. It is a defense that someone else put it there or that you did not know about it. Therefore, we may be able to retain computer experts to examine the machines in question and determine if there is any possibility that hackers, viruses, other users, or malware lead to the placement of the prohibited images. Our child pornography attorneys will conduct a thorough investigation and not simply accept the prosecution's assertion that it must have belonged to you. 

Third, in every criminal case, we carefully review the evidence and police reports to determine whether the police and/or federal agents have complied with the law. The Pennsylvania and United States constitutions require law enforcement officers to follow the law when conducting a search and seizure of a computer and when questioning a suspect. The laws surrounding search and seizure apply just as strongly in child pornography investigation as they do in any other area of criminal law. This means that police may have been required to obtain a search warrant, a subpoena, or other court order prior to conducting a search. They also may be required to provide Miranda warnings prior to questioning you. In some cases, the government takes shortcuts or exceeds its authority under a court order, which could lead to a pre-trial motion to suppress or motion in limine that results in the evidence being excluded from trial and the case being dismissed.

Finally, in cases in which the evidence is overwhelming, our attorneys have extensive experience negotiating with prosecutors to try to minimize the consequences of a conviction on a client’s life. Prosecutors know that our lawyers are not afraid to take a case to trial and that we have won acquittals and motions even in extremely difficult cases. We are also able to investigate the defendant's background in order to present the most compelling case possible to the prosecution during negotiations or to the judge at sentencing. Therefore, we are often able to work out satisfactory resolutions for our clients in situations in which it is not advisable to proceed to trial. However, we will not recommend a plea just to save time or money. We will only recommend a plea when it is the best option. 

WE CAN HELP WITH CHILD PORNOGRAPHY CHARGES

Criminal Attorney Demetra Mehta, Esq.

Criminal Attorney Demetra Mehta, Esq.

The most important advice we can give is this: If you are facing investigation or charges for child pornography, call us immediately. We offer a complimentary criminal defense strategy session. We keep all information confidential, and we will not judge you. Our defense lawyers can help you get through this difficult time because we have the experience necessary to fight these serious charges. Call 267-225-2545 to begin planning your defense. 

Related Articles:

Information You Need If The Police Are Asking About Illegal Pornographic Material On Your Computer

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Appealing Megan's Law Retroactivity Provisions

PA Superior Court: Child Porn Convictions Arising Out of Same Case Do Not Trigger Lifetime Megan's Law Registration


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