As a Baltimore Maryland Criminal Defense Lawyer/Attorney I have represented many people charged with various offenses related to the possession, distribution and manufacturing of child pornography. Jurisdiction exists to prosecute these cases in both Federal Court by the US Attorney’s Office and the State Court system. As in the case in most crimes for which there is dual jurisdiction, the penalties are much harsher in the federal system. In fact, there are mandatory minimum sentences in Federal Court of 5 years for receiving, 10 years for distribution, and 15 years for manufacturing child pornography. There are mandatory sentences in the state system.
In recent years, these matters have received much higher priority from both state and federal prosecutors and the two authorities collaborate closely on these cases. In what many on the defense side see as an unfair tactic, state prosecutors often use the threat of federal prosecution to convince (some say coerce) a defendant charged in the state system, to plead guilty. I am currently representing a man who is charged with distribution of child pornography who finds himself facing this very situation. I have handled many cases like this as a Baltimore Criminal Defense Attorney but what makes this case different is that the State’s theory for proving my client’s intent to distribute is his use of a file sharing program called Limewire. Here are the facts:
My client is a 19 year old man with no prior criminal record. He came to me after the police raided his house and confiscated his computer. The basis for the warrant was that my client had visited a child pornography site that the police were watching and they traced the IP address from his computer to his residence. At the time of the execution of the search warrant, he was read his Miranda Rights and questioned about the case. He admitted to the police that he searched for child pornography on the Internet using known terms for you young gay male images. He further admitted that he used the program Limewire to facilitate his search but denied that he had ever intended to distribute or share the images with anyone else. He further advised the police that he was only interested in images of post pubescent teenagers (in other words, his peers) and would immediately erase any images of young children captured by the Limewire search.
He advised the police that the reason he used this program was not because he intended to share the images but instead because the program allows a person to do multiple searches simultaneously. He advised that his computer is very old and very slow, so he would punch in the terms and then leave the computer for long periods while it conducted the search.
Unfortunately for him and many other similarly situated defendants, he will probably never have a chance to assert that defense to the felony possession with the intent to distribute child pornography charge. The reason for this is that he has given a choice by the State’s Attorney to plead guilty in State Court to the felony or be indicted federally. The plea in state court will require him to serve a year in jail and register as a sex offender. While this may seem a harsh penalty for a young man with no prior criminal record, as it most certainly seems to me, the alternative is far worse. The alternative is to go to trial in federal court where he would face no less than five years in prison and very likely 10 years in jail. Moreover, as most people are aware, federally sentences must be served in their entirety as there is no parole in the federal system.
The reason I say he would face a minimum of five years is that he has no defense to the receiving child pornography charge which as noted herein, carries a mandatory five year prison sentence under the Federal Sentencing Guidelines. The evidence against him on this charge is overwhelming. The police executed a valid search and seizure warrant on his premises during which they recovered a computer which they had previously linked to child pornography sites through the IP address. On that computer they found multiple images and videos of minor children engaging in sexual activity. My client then waived his right to counsel and confessed to being the person who had used that computer to search for those images. So even if he were successful in convincing a jury that he did not intend to distribute the materials to others, the best he could possibly hope for would be to be convicted of receiving the illegal images and being sentenced to the mandatory five year term.
As I said, many on the defense side see this tactic as unfair and coercive. However, the view of the U.S. Attorney’s Office is that they are basically giving clients such as mine a tremendous break by allowing them to plead guilty in the far more lenient state system in cases in which they could clearly exercise jurisdiction. I will leave it up to the reader to determine which view is more persuasive.