Federal Child Pornography Lawyer DEFENDING CHILD PORNOGRAPHY CASES

Under federal law, child pornography is defined in 18 U.S.C. § 2256 as any visual depiction of sexually explicit conduct involving a minor under the age of 18. This includes photographs, videos, and digital images.

The term ‘sexually explicit conduct’ includes sex, bestiality, masturbation, sadistic or masochistic abuse, and lascivious exhibition of the anus, genitals, or public area.

Yes, child pornography charges are extremely serious and can have severe implications for the rest of your life. If convicted of a child pornography crime, you can face lengthy prison sentences, hefty fines, and mandatory registration as a sex offender. Furthermore, you may have difficulty securing future employment and can face challenges within your personal life as well. Child pornography crimes carry harsh penalties on both the state and federal levels.

A federal prosecution for child pornography is broken down into different steps, which include the initial investigation, the charging decision, the initial hearing and arraignment, discovery, pretrial motions and negotiations, and trial and sentencing.

• Initial investigation — The lead law enforcement officer (or case agent) carries out a criminal investigation, including obtaining search warrants to search homes and seize electronic devices, interviewing witnesses, issuing grand jury subpoenas for digital records, and conducting forensic analyses of electronic devices.
• Charging decision — Federal cases require a grand jury indictment unless the defendant waives this right. A federal prosecutor will make a decision to take the case to a federal grand jury, refer the case for state prosecution, or drop the case altogether. If the federal prosecutor decides to charge the case, he or she will present the case to a grand jury which will examine the evidence to determine if there is probable cause to charge someone with a child pornography offense.
• Initial Hearing/Arraignment — After being charged, the defendant is scheduled for an initial hearing where they are informed of formal charges and rights, and must enter a plea of guilty or not guilty. The defendant will also receive a bond hearing where the defense lawyer will ask that the defendant be released pending trial.
• Discovery Process — During this phase, the prosecution will hand over evidence to the defense, including witness statements, internet activity logs, file metadata, and forensic reports. This phase is also when the defense can hire an independent computer forensics expert to examine any electronic devices seized by law enforcement.
• Pretrial Motions and Plea Bargaining — The defense can file motions seeking to suppress or exclude evidence, with the hope of chipping away at the Government’s evidence. It is also during this time that the Government and defense may enter into plea discussions. If a plea agreement is reached, the Court will hold a change of plea hearing before sentencing.
• Trial and Sentencing — If no deal is reached, the Court will hold a trial during which the Government must prove its case beyond a reasonable doubt. If there is a conviction, the case will proceed to a sentencing hearing.

There are three primary federal laws that govern child pornography cases:

• 18 U.S.C. § 2251 – This statute prohibits the production of child pornography. (Read more here.)
• 18 U.S.C. § 2252 – This statute prohibits the possession, distribution, and receipt of any visual depiction of a minor “engaging in sexually explicit conduct.” (Read more here.)
• 18 U.S.C. § 2252A – This statute prohibits accessing, possessing, receiving, distributing, transporting, and selling “child pornography.” (Read more here.)

18 U.S.C. § 1466A is the federal obscenity law. This statute prohibits producing, receiving, and distributing any visual depiction that is obscene and depicts a minor engaged in sexually explicit conduct. Such imagery can include pictures, drawings, sculptures, cartoons, or paintings that feature minors engaging in sexual acts.

This statute is rarely used by federal prosecutors due to First Amendment concerns, but if a defendant is convicted, the penalties can be just as severe as a conviction for child pornography.

Federal law and all 50 states criminalize child pornography. Federal prosecutors can elect to file charges or they can refer the case for state prosecution. Whether federal prosecutors choose to file charges depends on a number of factors, including the following:

• Whether the investigation started with federal authorities (e., there was a federal search warrant)
• Whether the case involves a large number of images, an online community, or the distribution of child pornography
• Whether the case involved contact or communication with an actual minor
• Whether the person has a prior conviction for a sexual offense
• Whether the case suffers from any legal problems such as an unlawful search or Miranda violation

Possession of child pornography carries no mandatory minimum sentence and only requires evidence showing that a person controlled the image (e.g., the image was on a person’s cell phone). Receipt is a more serious offense. It carries a five-year mandatory minimum sentence and requires additional evidence showing where the defendant received the image from (e.g., a website or peer-to-peer program).

Prosecutors often use the five-year mandatory minimum required by a receipt charge in order to strong-arm defendants into plea deals. In some federal districts, the U.S. Attorney’s Office will allow a defendant to enter a plea to simple possession if the plea is entered before the case is indicted. This practice has unfortunately led to many defendants being convicted without their cases being fully investigated for potential defenses. In other federal districts, receipt is routinely charged in order to increase the odds of a stiff prison sentence (at least 5 years).

The government often charges receipt when there’s evidence that a defendant actively downloaded, accepted, or saved files — not just had them on a device. Skilled defense counsel will challenge the receipt charge whenever the facts support a possession-only theory, because the difference can mean five mandatory years in federal prison versus the possibility of probation or a lower-end sentence. Forensic analysis of how files arrived on a device — automatic caching, browser previews, malware, shared devices, or peer-to-peer software behavior — is frequently the deciding factor.

Transportation of child pornography is charged under 18 U.S.C. § 2252A(a)(1) and § 2252(a)(1). A transportation offense occurs when an illegal image is transported across state lines. While this include driving or flying an electronic device (such as a cell phone) across state lines, it is often charged when a person uploads an image to a cloud server such a Dropbox or Google Drive. A transportation charge carries a mandatory minimum sentence of 5 years and a maximum sentence of 20 years.

Yes, the U.S. government has taken the position that AI child porn and computer generated child porn is illegal under federal law. In 2024, the FBI stated in a press release that any child sex abuse materials created by computers (such as generative artificial intelligence) is illegal.

That being said, it is rare for an individual to be solely charged with possessing AI images depicting child pornography. Normally, a person is charged with both actual images and AI images. When AI images are charged, the Government typically alleges a crime under 18 U.S.C. § 1466A, which addresses obscene visual representations of minors.

In a ruling last year, a federal judge in Wisconsin dismissed a count in a federal indictment against a defendant charged with possessing AI images. The judge explained that simply possessing obscene images, which do not involve a real child, is protected under the First Amendment. The judge, however, did not dismiss counts alleging production and distribution of the images (as such conduct is not protected). The case is now on appeal.

In the coming years, courts will grapple with any protections that apply in cases involving AI child pornography. But we expect that the Government will continue to prosecute these cases, firmly believing that such conduct is illegal.

Most child pornography investigations begin months or even years before law enforcement shows up at the door with a search warrant. In most cases, the investigation begins when law enforcement or a company like Yahoo, Google, DropBox, Kik, or others identify a user’s IP (Internet Protocol) address as being associated with a download or upload of child pornography.

After an IP address is identified, the image or video is normally sent to NCMEC (the National Center for Missing and Exploited Children) which will investigate the image and determine if it matches a known child victim. NCMEC will then send the report to law enforcement for further investigation.

Law enforcement will then get a search warrant for the residence linked to the IP address and seize all of the computers, cell phones, hard drives, and other electronic equipment in the home. The police will usually also try to interview the residents of the home to obtain a confession or admission. It’s important to note that sex crimes are considered federal crimes, and any accusations or charges related to child pornography are treated with the utmost seriousness under federal law.

Federal investigations typically involve agencies like the Department of Homeland Security or FBI obtaining search warrants for mobile devices, storage media, and computers, then conducting forensic examination of digital evidence. Before formal charges can be brought forward, various federal agencies may carry out extensive investigations, which can include analyzing forensic electronic evidence, organizing online sting operations that target suspected individuals, applying for search warrants to seize storage devices like phones and computers, and issuing grand jury subpoenas to get digital records released.

Yes, accidentally downloading child pornography can lead to charges. An experienced criminal defense lawyer will use computer forensics experts to show that the download was unintentional. If hired early enough, it is possible that a good defense lawyer can prevent charges from ever being filed.

Law enforcement typically obtains the physical address of individuals believed to possess child pornography by first obtaining their IP (Internet Protocol) address. This digital address allows a computer to send and receive data across the internet. Once obtained, law enforcement can determine the Internet Service Provider (such as Verizon or AT&T) and then subpoena the provider for subscriber information, including a physical address.

If law enforcement has a search warrant for your home, you must allow them to enter. You should attempt to verify that the warrant is for the correct address and that is signed by a judge.

During the search, law enforcement will likely attempt to question you, ask you to unlock electronic devices, or ask for your consent to search an area or particular device. You should keep in mind that you have the absolute right to remain silent and to deny any such requests.

As soon as possible, you should contact an experience federal criminal defense lawyer. A defense lawyer will contact the lead federal agent and prosecutor assigned to the case to learn more about the investigation, work to prevent charges from being filed, and try to get any items that were taken returned to you.

Child porn charges can be challenged in many ways, including options such as challenging the evidence, the arrest and search and seizure process, proving innocence with counter-evidence, calling into question the validity of the prosecution’s evidence, and more. Common defense strategies include:

• Alleged Entrapment. Entrapment by police is when law enforcement induces you to commit a child porn crime that you would not have committed otherwise if you were not contacted and persuaded into doing so. Entrapment is illegal, and proving such cases can result in the dropping of associated evidence.
• Illegal Search and Seizure. In order for the evidence seized to be used as valid against you, it must be seized legally by law enforcement. If police make a procedural error and violate your Fourth Amendment constitutional right, the evidence seized can be proved to be inadmissible in court.
• Possession by Accident. The Internet has complex cyber-technologies that can put certain files and media on your computer or in your possession without your knowledge. This can happen through spam, viruses, and malware, or a hacker can download child porn images on your computer without your consent. Accidental possession of such files is a common defense.
• Claims the Content Is Not Child Porn. In some cases, the evidence used against you can be challenged as not being child pornography. For example, if it can be proved that the people in the images are not under the age of 18, then the material may not indeed be considered to be child pornography.
• Alleged Addiction. While stating that the defendant is in a state of psychological addiction is not a tactic that can get a case dropped and is typically not the most ideal, it can help get sentencing minimized or help advocate for alternative sentencing.
• Claiming the Material Is Not Yours. Although certain incriminating evidence may be found on your computer or device, it may have been put there and utilized by another person. In such a case, you can argue that the material does not indeed belong to you.

Defense strategies for each child pornography case will vary depending on the details of the case, such as the available evidence, the prosecution’s claims, the criminal history of the defendant, the extent and nature of the charges, and the potential penalties.

Yes, hiring an independent computer forensics expert is often necessary to fight child pornography charges. The government’s expert (usually an analyst from the FBI or Homeland Security) will prepare a forensic report detailing the images found on a hard drive. Without hiring an independent expert to review the electronic devices, a defendant has no way to effectively challenge the government’s report and expert.

Our computer forensics experts review the devices and help us build an ironclad defense. An independent expert can help us show that our client accidentally downloaded child pornography or that our client had no knowledge that a particular image or video was on the machine. Our experts do this by using specialized software, such as FTK or EnCase, to retrace the steps that led to the image or video being on the computer.

Our experts can also detail internet history, search terms that were used, dates and times accounts were accessed, whether viruses and malware were present, and whether a computer was remotely accessed. All of these factors can give rise defenses that can lead to a dismissal, acquittal, or reduction. We fortunately have access to the best-trained computer forensics experts in the country, and we have been able to prove many our clients’ innocence due to their expertise.

Many child pornography cases are the result of a peer-to-peer file sharing programs (also called P2P) like BitTorrent, Ares, Shareaza, or eMule. These programs allow users to easily share image and videos, including child pornography. Law enforcement has its own versions of these programs which allows it to see which IP addresses are sharing or downloading child pornography.

The vast majority of the pornography on these programs is legal adult pornography. The files, however, are not always accurately labeled. Images can also be bundled into larger files. This can cause a user to accidentally download child pornography, sparking an investigation and possible arrest. Even if the user attempts to delete the child porn, the image or video will likely remain in the computer’s unallocated space which law enforcement can find with special software. To prove that the download was an accident, it is often necessary to hire an independent computer forensics expert. The expert will examine the file and folder properties to determine how the image got onto the machine and whether a user would be able to tell if the file contained child pornography before downloading.

There are generally four types of pretrial motions that your lawyer can file in a child pornography case: motions to compel the government to turn over discovery, motions to suppress unlawfully obtained evidence, motions that seek to limit the evidence introduced at trial, and motions challenging the Government’s expert.

1. Motions to compel discovery. The most common type of motion seeks to compel the Government to turn over all discovery in its possession prior to trial. In a child pornography case, this could mean all reports and notes drafted by the Government’s computer forensic examiner, the transcript of the grand jury proceedings, or the audio of any statements made by the defendant to law enforcement.
2. Motions to suppress evidence. If a search warrant violated the Fourth Amendment, a lawyer can file a motion asking the Court to suppress any electronic devices seized during the execution of the search. And if law enforcement failed to read Miranda warnings prior to questioning a defendant, a lawyer can ask the Court to suppress any statements made by the defendant. To learn more about motions to suppress, please skip to the next question in the FAQ.
3. Motions that seek to limit the evidence introduced at trial. This type of motion is often referred to as a motion in limine. A motion in limine asks the court to make an evidentiary ruling on a piece of evidence prior to trial. Typically, the defense will argue that a piece of evidence that the Government seeks to introduce is either irrelevant or unduly prejudicial. In child pornography cases, a defense lawyer may seek to limit the number of images shown to the jury, preclude the Government from mentioning an alleged prior bad act, or exclude evidence showing a predisposition to the charged offense.
4. Motions to exclude the Government’s expert. Child pornography cases almost always turn on computer forensics, and the Government will rely heavily on its computer forensics expert. A good defense lawyer will file a request for a Daubert hearing, challenging the reliability of the Government’s expert’s findings.

Search warrants obtained in violation of the Fourth Amendment can taint the entire case. Most child pornography cases in federal court involve a search warrant which authorized the seizure of a defendant’s electronic devices. If the search warrant was unlawfully obtained, we can file a motion to suppress, arguing that the evidence was seized in violation of the Fourth Amendment to the U.S. Constitution. Many of these investigations begin with state or local police officers who are not as well trained as federal agents. This lack of training (or in some cases sloppiness) can cause force the government to dismiss the entire case if we file a motion to suppress.

If you were interviewed by law enforcement and made incriminating statements, your lawyer can file a motion to suppress these statements. Law enforcement will often fail to inform a person of his Miranda rights, thereby giving your lawyer the opportunity suppress the statements.

In one recent case, the only evidence tying our client to child pornography found on a computer was his alleged confession which law enforcement had illegally obtained after raiding his home. When we argued that law enforcement had violated Miranda, the government dismissed the charges.

The average sentence in non-production child pornography cases (which includes possession, receipt, and distribution charges) is 103 months in prison. But every case is different, and factors like the specific district, judge, and unique facts of each case determine the outcome. Because federal sentencing in child pornography can be severe, it is critically important to retain a defense lawyer who is going to fight for you.

We are often asked what a defendant can expect to be sentenced to if there is a conviction. While the sentencing laws provide for a wide range of possibilities (0 to 20 years for simple possession), federal judges use the Federal Sentencing Guidelines to arrive at a much narrower range and then fashion a particular sentence that they see fit. For a quick primer on the Guidelines in child pornography cases, you can visit our blog post here.

The Federal Sentencing Guidelines have been quite harsh to individuals convicted of child pornography offenses. In 2019, for instance, the average sentence recommended by the Guidelines for individuals accused of simple possession, receipt, or distribution was 136 months (or about 11 years) in prison. Judges, however, routinely sentence below the Guidelines’ recommendations. As noted above, the average sentence handed down by judges in 2019 was 103 months (about 8.5 years). This number is even lower for possession cases.

It is important to note that United States has 94 different federal judicial districts, and each one approaches sentencing in child pornography cases a bit differently. The Eastern District of Virginia charges child pornography offenses at a much higher rate than most federal districts and has a strict policy of refusing to reduce receipt and distribution cases to simple possession (thereby ensuring a 5 year mandatory minimum sentence). In 2021, there were 40 child pornography cases in the Eastern District of Virginia and the average sentence was 106 months (the median sentence was 74 months). Comparatively, in the Northern District of Georgia, which routinely reduces cases to simply possession, there were only 20 child pornography cases and the average sentence was 89 months (with a median sentence of 60 months).

At a federal sentencing hearing, the judge will first calculate the total offense level under the Federal Sentencing Guidelines, which corresponds with a recommended range of months of imprisonment. Most child pornography cases are controlled by § 2G.2.2 of the Guidelines. To arrive at the total offense level, the judge will start with the base offense level. Possession of child pornography, for example, has a base offense level of 18 while receipt and distribution have a base offense level of 22. The Court will then add various enhancements which will increase the offense level. The most common enhancements in child pornography cases are the following:

• +2 levels for use of a computer
• +2 levels for a minor under 12
• +4 levels for sadistic depictions or toddler
• +2 to +5 levels for number of images

Finally, if the defendant entered a plea of guilty, he will likely be entitled to a three-level reduction for acceptance of responsibility. A defendant who enters a plea to possession of child pornography and receives all of the enhancements noted above would likely have a total offense level of 28. Under the Guidelines, the corresponding range for this level is 78 to 97 months in prison. Of course, the total offense level is just the starting point, and the Court will then determine if it should fashion a sentence outside of this range based on § 3553(a) factors.

18 U.S.C. § 3553(a) is incredibly important in child pornography cases, because it allows a judge to give a sentence below the Federal Sentencing Guidelines’ recommended sentencing range (which is often quite harsh). The statute requires a sentencing judge to fashion a sentence that is ‘sufficient, but not greater than necessary’ after considering the following factors:

• The nature and circumstances of the offense
• The history and characteristics of the defendant
• The need for the sentence imposed to reflect the seriousness of the offense
• The need for the sentence to afford deterrence and protect the public
• The need to provide the defendant with medical care and correctional treatment
• The kind of sentences available
• The need to avoid unwarranted sentence disparities

From the defense’s perspective, the ‘history and characteristics of the defendant’ factor is usually the most important factor at sentencing. This factor allows a defense lawyer to put forth evidence showing what kind of person the defendant is beyond the charges. This is a defense lawyer’s opportunity to humanize his client and show that his client is deserving of a second chance.

A good defense lawyer will build a persuasive case as to why his client is deserving of lenient treatment by focusing on the ‘history and characteristics’ factor under 18 U.S.C. § 3553(a). The defense will do this by presenting letters, documents, and testimony from individuals who know the defendant well and from treatment providers (both medical doctors and mental health providers). The types of letters and documents that a defense lawyer may introduce include:

• Character letters from family, friends, neighbors, and co-workers showing that the defendant is a good person, has taken responsibility, and is not likely to reoffend.
• Medical records showing that the defendant suffers from an ailment (either

physical or psychological) which would be difficult to treat in prison.

• Counseling records showing that the defendant has undergone therapy to address

any mental health concerns.

• Sex offender treatment documents showing the defendant has been proactive

about undergoing sex offender treatment and has been in compliance.

• Psychosexual evaluations showing that the defendant has been examined by a

clinical psychologist and has been deemed a low risk of reoffending.

Yes, an autism diagnoses can be very helpful at a sentencing for a child pornography offense. Defendants with Autism Spectrum Disorder often have a reduced level of culpability due to social immaturity, a reduced Theory of Mind, and an inability to foresee the consequences of their actions. In some cases, a clinical psychologist or psychiatrist can draw a direct connection between a defendant’s autism and the charged offense. When used effectively, an autism diagnoses can result in very lenient sentences.

Our lawyers are widely regarded as experts in autism and have obtained some of the lowest sentences possible, including probation sentences. If you or someone you know has autism and is charged with a federal crime, please visit our main autism page here to learn more about autism and its impact on criminal proceedings.

Yes, a computer forensics expert can be incredibly valuable at child pornography sentencing. An independent expert can challenge the government’s allegations regarding the number of images, the nature of images, where the images were located, and the extent and duration of alleged conduct. Such testimony can result in a reduced sentence, lowered fines, and less restitution.