Federal Appellate Court (11th Cir.) requires distribution of CP to be knowing.
The Eleventh Circuit Federal Appellate Court (our circuit), reversed the conviction of a man who had been charged (and convicted) of distribution of child pornography, but upheld his possession count.
The Defendant had been viewing child pornography he had downloaded from a peer-to-peer network, for a period of approximately eleven months before agents raided his home and confiscated his computer. On that computer they found images of child pornography in a folder that other users of the peer-to-peer network could access.
The trial court convicted him of distribution, because others were able to access those files. The appellate court said no. That “Congress elected to proscribe only those acts of distribution that are accomplished with the requisite state of mind, and it is the government’s burden to prove the statute’s knowledge requirement beyond a reasonable doubt.”
The government would have had the court hold the defendant strictly liable for the downloading offense, simply by virtue of the fact that he was using a peer-to-peer network and by virtue of the type of software he used, “should have known” that others could access files from his computer. The court said no. “Without some proof that the defendant consciously shared files, either by authorizing their distribution or knowingly making them available to others, he cannot be held liable for knowing distribution under Section 2552(a)(2).”
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Question, if anyone can give some insight to this: My conviction was in Texas, which I believe is a different Appellate court. My charges were possession and promotion. The promotion stemmed from my downloading was done via Limewire. The promotion was considered “automatic” by simply having in my possession more than 3 photos/videos. Is this something that could be considered nearly if not identical to this case?
I’m sorry but i’m surprised at this ruling. When you download p2p software is pretty much indicating that you will be sharing files.
my question is a simple one.. FBI raided and seized Backpage for promotion of prostitution, human trafficking of under age ( minors) . why are they not going after P2P sites ( like Limewire ) . they are the largest distributors of CP. most of the servers are loaded with it.
It seems P2P CP convictions is how they keep feeding the ICAC machine. Ignorance to the lack of privacy of P2P is not a defense in court. In addition the sentence/penalty keeps our prisons full. Which fills the pockets of certain individuals in our upper echelon.
What is the penalty for a single picture/frame CP? 5years? You could hit someone on the head with a hammer and get less time.
One pic = X amount of time multiplied by X and run concurrently = mucho mucho time!
I’ve seen this many times as well.
Oh, tack on X amount of probation afterward with gps monitoring, driving logs, therapy, curfew,
My son’s attorney argued that he did not know that the files were being shared, and that he didn’t even know about the one file.
My son was convicted of possession and promoting, because he downloaded via Lime Wire and the files were shared (unknowingly). And the one file he hadn’t opened the officer opened it, it was the one that really nailed him as the child was young, under 14. He was 17 and thought the persons were 15 or older. Would love to see these convictions of all persons who were convicted for distribution, or promoting changed if they used peer to peer.
There are three methods of conviction with P2P pertaining to CP. You have standard possession (+x amount per frame). You have distribution as the P2P (whether it’s Limewire/Ares etc) does have a user-agreement notice that informs whomever is using the P2P that they will be automatically sharing (have files available for download to others) whatever they download is immediately “distributed” or if it helps them secure a conviction “promotion”. And “Production” which we almost never hear about since “possession” is an easier conviction and it all carries about the same penalty.
In my particular case I was convicted for “Possession” of CP. Which was interesting. Because as I was using a P2P program, I constantly uninstalled it and reinstalled it so the program reflected no activity and deleted anything I had ever viewed(clean disk defrag etc). I had no readily available evidence for them to make an arrest. Didn’t matter much, after a few hours and some less than honorable Police negotiations tactics. I was in County Lock up at the arraignment my charge had been changed from “Possession” to “Compiling”.
How do you Compile CP if you don’t have it? The answer is the FTK Program. This 3,000$ Forensic Tool Kit; will scan your PC for the smallest shreds of CP. I’ve read that it could even take up to several days for the FTK program to compose a single image.
As I spoke to my attorney, I had to ask; since I don’t own a 3,000$ FTK how am I extracting images that could take countless hours? More over was there an FTK program found while ICAC searched my home and vehicle?
I happen to have a great attorney, but he told me with honesty. He could fight the charges but it would bleed me out financially. The prosecution in this matter has a bigger budget than I do for my defense. In the end they will win and hit me with the maximum. I recently won my early term of probation. I don’t feel anymore “free” considering the in Florida the Registry is for life.
Apologies for the long response, I’m just hoping my experience could help someone else out.
I downloaded files and did not even know they contained CP in it, I was charged with Possession! Served 68 months and ruined my life. Wonder if there’s a way to go back and try to get it reversed? Anyone know? It sure would change things around for me!
Good news! They tried to do that to my son but could not prove one way or the other that he was actually sharing. Does this help anyone that was convicted before of the same thing?
If it is considered a “Change of Law” then yes. If it is a evolution or something to that effect then the answer is no.
May wanna consider taking some time with a lawyer on this one. As far as I know most of these things only affect those who are currently incarcerated.