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Chapter 4: Trial Defenses


STATUTE OF LIMITATIONS


Overview

At the federal level, there is no statute of limitations for child pornography, meaning a person can be charged at any time. The 2006 Adam Walsh Child Protection and Safety Act codified 18 U.S.C. § 3299, which eliminated the statute of limitations for child pornography cases. However, case-specific dates may warrant consideration of previous statutes of limitations, and some circuits appear to neglect § 3299 altogether. 

Prior to the Adam Walsh Act

18 U.S.C. § 3282 maintains a five-year statute of limitations for non-capital crimes, “except as otherwise expressly provided by law.”

Many circuits have held that non-production cases do not involve the sexual abuse of a child, so § 3282 applies and there is a five-year statute of limitations. For example, many circuits have held that possession cases warrant the application of a five-year limitations period.[1] The Fifth Circuit further held that the statute of limitations is five years under § 3282 for receipt of child pornography.[2]

18 U.S.C. § 3283 maintains that the statute of limitations for prosecuting offenses involving the sexual abuse of children is either the child’s lifetime or up to ten years after the commission of the offense, whichever is longer.[3] This extends the statute of limitations for production offenses, which have generally been determined to involve the “sexual abuse” of children. For example, the Eighth Circuit concluded that the production of child pornography involves the “sexual abuse” of a child, thus qualifying for the statute of limitations prescribed by § 3283.[4]


[1] United States v. Coutentos, 651 F.3d 809, 817 (8th Cir. 2011); United States v. Burkhart, 602 F.3d 1202, 1206 (10th Cir. 2010); United States v. Richards, 301 F. App’x 480, 482 (6th Cir. 2008) (unpublished); United States v. Carpenter, 680 F.3d 1101 (9th Cir. 2012); United States v. Diehl, 775 F.3d 714, 721 (5th Cir. 2015)

[2] United States v. Baker, No. 22-20216, 2023 WL 4044412, at *2 (5th Cir. June 16, 2023)

[3] From June 25, 1948 – Apr. 30, 2003, § 3283 was enacted to allow sexual abuse victims to bring suit until the age of 25 years old. From Apr. 30, 2003 – Jan. 5, 2006, § 3283 was amended to extend the statute of limitations to allow prosecution at any time “during the life of the child” In Jan. 5, 2006, “or for ten years after the offense, whichever is longer” was added.

[4]United States v. Carpenter, 680 F.3d 1101 (9th Cir. 2012)

After the Adam Walsh Act

18 U.S.C. § 3299 was enacted on July 27, 2006, and provides that “notwithstanding any other law, an indictment may be found or an information instituted at any time without limitation … for any felony” under 18 U.S.C. Chapter 110 (including § 2251, § 2252, and § 2252A). Therefore, for child pornography offenses, legal action can be initiated at any time without being constrained by statutory time limits.

If it can be proven that the limitations period on the count(s) for distribution, receipt, possession, or production of child pornography in question had already run prior to the passage of the Act in July 27, 2006, the offense can no longer be prosecuted. Congress “has the power to extend the period of limitations without running afoul of the ex post facto clause, provided the [original] period has not already run.”[5] Otherwise, “prosecution under a statute that purports to revive a limitations period after it has run” would be unconstitutional.[6]

Some courts appear to default to previous statutes of limitations. For example, the First Circuit refers to the § 3282 five-year statute of limitations in a possession case for an offense committed in 2015 (“[the defendant] possessed the nineteen images within the five-year statute of limitations”), and the Eighth Circuit refers to the § 3282 five-year statute of limitations in a receipt case for an offense committed after 2011 (“This … accurately reflected the five-year statute of limitations.”).[7] Sometimes, however, the initial neglect of § 3299 is later addressed. The Fifth Circuit points out that in a receipt and possession case for alleged offenses committed in 2018 and 2019: “both parties agreed that the general five-year statute of limitations for noncapital offenses found in 18 U.S.C. § 3282(a) applies to this case … However… there has been no statute of limitations for the receipt of child pornography since the Adam Walsh Child Protection and Safety Act of 2006.”[8] The Ninth Circuit likewise corrected a district court’s dismissal of the case concerning the baby on Nirvana’s Nevermind album cover for being outside of the limitations period.[9]

However, other circuits and districts regularly account for § 3299 when determining whether or not the limitations period has run. For example, the Eighth Circuit refers to § 3299 in a 2011 possession case [10], Delaware’s district court relies on § 3299 to disregard the defendant’s statute of limitations argument in a 2022 receipt case [11], and the Central District of California did the same in a 2009 receipt and possession case.[12]


[5] United States v. Madia, 955 F.2d 538, 540 (8th Cir. 1992)

[6] United States v. Bischel, 61 F.3d 1429, 1434 (9th Cir. 1995)

[7] United States v. Torres Monje, 989 F.3d 25 (1st Cir. 2021)

[8] United States v. Baker, No. 22-20216, 2023 WL 4044412, at *2 (5th Cir. June 16, 2023)

[9] Elden v. Nirvana L.L.C., 88 F.4th 1292, 1295 (9th Cir. 2023)

[10] United States v. Coutentos, 651 F.3d 809, 817 (8th Cir. 2011)

[11]  United States v. Isip, No. CR 19-64-RGA, 2022 WL 1120111, at *1 (D. Del. Apr. 14, 2022)

[12] United States v. Welton, No. CR0900153MMM, 2009 WL 4507744, at *1 (C.D. Cal. Nov. 30, 2009)

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