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Defending Colorado Federal Child Pornography Cases – A Complex Task

By H. Michael Steinberg – Federal Sex Crimes – Child Pornography Defense Lawyer

Defending Colorado Federal Child Pornography Cases

Defending Colorado Federal Child Pornography Cases

Defending Colorado Federal Child Pornography Cases – A Complex Task  – Federal Sex Crime charges – even the simple possession of child pornography, are many times more severe in their consequences than the same charges under Colorado sexual exploitation sex crimes laws.

If you are facing federal sex crime charges, an  aggressive and knowledgeable Colorado federal criminal defense attorney is of critical importance. An experienced lawyer in this area should be with you through every step of your case and this is especially true during the pre-filing period BEFORE formal charged have been filed by indictment.

 

Colorado Federal Sex Crimes – Federal Sentencing Guidelines Are Severe

While this article addresses only possession of child pornography – an overview of Federal Sex Crimes that can be charged would include:

• Human trafficking

• Child exploitation

• Child pornography

• Kidnapping for the purpose of committing a sex crime

• Trafficking for prostitution 

If You Are Under Investigation – Consult a Colorado Federal Sex Crime Attorney  – Federal Internet Pornography Lawyer As Soon As Possible

Over the last several decades – with the introduction of internet and home PC’s the increase in the shear numbers of these crimes has been overwhelming. The focus of the Justice Department has been to make the possession and distribution of child pornography among the most prosecuted cases in this area.

The potential punishment for convictions is severe including possible decades of imprisonment, large fines, all followed by a lifetime of social stigma and hopelessness.

Federal Child Pornography Laws

Federal prosecutors in Colorado and elsewhere in the United States – are prosecuting child pornography offenses at an increasing rate.

United States Federal law prohibits the…

…possession, receipt, distribution, copying, or advertising of images containing sexual depictions of minors. In addition to actual images of individuals under 18 years old, sexual images even purporting to depict minors can also qualify as child pornography, whether or not an actual minor is depicted.

      • A conviction for possession of child pornography can result in a sentence from 5 to 20 years imprisonment, and up to 40 years if previously convicted.
      • If an actual child is involved – such as sending obscene images to a minor, which include any type of pornography, is punishable by up to 10 years imprisonment under federal law, and the production of these images can result in a 15- to 30-year sentence. With a prior conviction, these sentences may be significantly longer.
      • In addition to imprisonment, federal law provides for forfeiture of any computers or electronics used in connection with child pornography possession, distribution, or production, as well as criminal fines ranging as high as $250,000.
      • Registration as a sex offender and government supervision upon release is usually mandatory. Victims may also be entitled to sue for civil damages.

It is well known to those who practice federal law that child pornography is one of the most heavily prosecuted of all of the federal sex crimes. Colorado cases are often charged at the federal level because the “sentencing guidelines” provide for longer prison sentences than in Colorado state court. In federal court, even a first-time offender with no criminal history, can be sentenced to 10 years in prison, depending on the number of images recovered from their computer.

The First Line of Defense In Defending Federal Child Pornography Cases

When an individual is charged with child pornography offense, one of the first lines of defense is to attack any searches or seizures that ultimately led to the discovery of these images by law enforcement.  If no warrant was used – evidence of any crime discovered during the warrantless search ( if it was done without the property owner’s consent), is likely to have violated the Fourth Amendment to the U.S. Constitution. Where such a violation of constitutional rights has occurred, suppression of all evidence seized is possible.

The Entrapment Defense

If, in a sting operation, state or federal agents attempt to induce individuals into distributing or receiving pornographic images by their use of a false identity, the entrapment defense may be a possibility.  If a defendant can show that he would likely not have committed a crime without the government’s encouragement, he is not criminally responsible.

The Methodology Used To Investigate And Prosecute Federal Child Pornography Cases

Step One: A federal agent, with a file sharing program, such as LimeWire, sits at his or her computer in a distant state and sends search terms that he or she expects will identify computers with activated file sharing capabilities that have child pornography on them.

Under Federal Law Child pornography is defined in the United States Code as meaning:

“any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where –

A. the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

B. such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

C. such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

Step Two: The federal agent locates a computer with alleged child pornography, and then downloads the images from the that computer using the same file sharing program.

Step Three: The agent then obtains the IP address of the computer and applies for (and always receives by the way) a search warrant from the computer’s internet provider to obtain the physical address where the computer is located. The government then obtains a search warrant for the residence and the computer.

Step Four: The execution of the search warrant is usually conducted in the early hours of the morning. All adults and even children in the home are carefully and forcefully interrogated to  identify who was using the computer to download the alleged child pornography.

Step Five: The suspect – to protect his or her loved ones or friends living or staying in the home confesses that they are the one who uses the computer or computers in question.

Step Six: All computers in the home are then identified, cataloged, seized and the suspect is  arrested. If children are present – and there are no other caregivers present – the children are turned over yo CPS (Child Protective Services) who then and forensically interview the children.

Deleting Files Does No Good – Do Not Fool Yourself

Hitting the delete button on a computer does not “wipe” the images off of your computer.  Using the most sophisticated software available – federal labs perform a complete forensic analysis which results in deleted files being restored.

Who Is Being Targeted?

What is known: (1) This crime is one of the most “anonymous” crimes that can be committed. (2) Most of the illegal images in question are widely circulated and readily accessible on paid and  unpaid sites (3) Vast numbers can be downloaded in mere minutes and once downloaded, (3) these images are almost impossible to fully delete.

The typical person indicted for possession of child pornography is has no criminal record and little or no familiarity with the criminal justice system.

In Colorado – if he shares the images online with others – not only is he indicted for possession – he may also be charged with DISTRIBUTION of child pornography since it was “distributed” in the chain of users of the “file sharing program.”

If an individual is charged with “Distribution”- this charge mandates a minimum prison sentence of 5 years and he is NOT eligible for probation.

Defending Colorado Federal Child Pornography Cases – Tactics and Strategies

Retaining an attorney who is not only skilled in federal court – but skilled in defending child pornography cases is critical. Conducting a forensic analysis of the defendant’s computer to determine if the alleged child pornography was accidentally or inadvertently downloaded is oneof the first things to be done.

Child pornography cases are complex and involve technical evidence from your computer – defense retained computer experts are necessary.  Determining if the images downloaded are legally “child pornography” is the second line of defense.

A third – not so technical – approach is to carefully analyze any statements or “confessions” made at the time of the execution of the search warrant – to determine if the statements should be attacked in a :motion to suppress.” LINK

Some Questions To Ask:

Who has access to the computers in question? Which sites were visited and how often?  Which “links” were used to download the images and how were they downloaded? Was the downloading “forced” upon the user – was it automatic? was it included with so called “legal” adult pornography?

Often these images are inadvertently downloaded by clicking a link on an adult porn site which displays images that you never intended to download.

Did other people access your computer remotely without your knowledge? If so, accusations that you distributed child pornography may not stick.

Was there a virus which was included in an “automatic” download without the owner’s knowledge that led to the download? Were the images maliciously placed on a computer, or was the computer or internet connection “hijacked”by another party?

If A Plea Agreement Is To Be Struck 

Most child pornography cases, because they are complex and difficult to refute at trial,  end up with some form of guilty plea. Typically the statements made at the time of the execution of the warrant is admissible at trial and it is tantamount to a confession to the crimes.

Only an experienced lawyer can fully evaluates that issue. But, after a thorough analysis of the case – a plea of guilty to a child pornography offense in federal court becomes the only viable option , it is important that defendant’s lawyer understands the federal sentencing guidelines inside and out when it comes to the options a federal judge has at sentencing.

Political “Candy” To Elected Officials

The federal sentencing guidelines – no longer mandatory – are now advisory. Judges have discretion in how to apply them in the individual case, however, judges like all government officials such as the United States Attorney prosecuting the case, take often take the hardest of lines when it comes to the recommended imprisonment ranges for child pornography.

Sometimes the nature of these sentences is such that a person who downloads child pornography and shares it online using a file sharing program actually can actually be sentenced to more time than a person who actually abuses a child.

On the other hand – a federal judge has the option to ignore the sentencing guidelines in child pornography cases and recent studies have shown that judges in more than half of these cases impose sentences in child pornography cases much lower than provided for by the sentencing guidelines IF it is not a mandatory 5 year prison sentence case for distribution.

Only a skilled federal crimes lawyer understands how to “deconstruct” the sentencing guidelines in these type of cases. If you are charged, find an attorney who has experience in this area. At the end of the day, it could mean the difference between probation and prison.

Defending Colorado Federal Child Pornography Cases

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author hmichaelsteinberg@colorado-sex-crimes-lawyer.com A Denver Colorado Sex Crimes Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.

If you are charged with A Colorado crime or you have questions about Defending Colorado Federal Child Pornography Cases, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience –  specializing in Colorado Criminal Law along the Front Range.  He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options.  Remember, it costs NOTHING to discuss your case.  Call now for an immediate free phone consultation.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.

Contact A Lawyer with Three Decades of Experience as a Denver Criminal Attorney at The Steinberg Colorado Criminal Defense Law Firm Today.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving …Defending Colorado Federal Child Pornography Cases.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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