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Child Pornography

By the mid-1980's, the trafficking of child pornography within the United States had been almost completely eradicated through a series of campaigns waged by law enforcement. Producing child abuse images was both difficult and expensive, and reproducing images was equally difficult and expensive. Purchasing and trading such images was extremely risky. Anonymous distribution and receipt was not possible.

Producing child abuse images has now become easy and inexpensive. The Internet allows images and digitized movies to be reproduced and disseminated to tens of thousands of individuals at the click of a button. The distribution and receipt of such images can be done almost anonymously. As a result, child pornography is readily available through virtually every Internet technology (web sites, email, instant messaging/ICQ, Internet Relay Chat (IRC), newsgroups/bulletin boards, and peer-to-peer). The technological ease, lack of expense, and anonymity in obtaining and distributing child pornography has resulted in an explosion in the availability, accessibility, and volume of child pornography.

Child Exploitation and Obscenity Section of the US Attorney’s Office works with the 93 United States Attorney offices around the country and investigative agencies to vigorously combat this growing problem. By maintaining a coordinated, national-level law enforcement focus, including coordinating nationwide and international investigations and prosecutions, CEOS attempts to deter the production, distribution and possession of child pornography by aggressively investigating and prosecuting of these crimes.

The Department of Justice, the Federal Bureau of Investigation, the Department of Homeland Security's U.S. Immigration and Customs Enforcement, and the Internet Crimes Against Children (ICAC) Task Forces have announced a national law enforcement initiative aimed at combating the growing volume of illegal child pornography distributed through peer-to-peer (P2P) file trafficking computer networks.

The law enforcement operation, which began in the Fall of 2003, has already resulted in the execution of hundreds of searches nationwide, and the identification of thousands of suspect computers used to access the child pornography. The FBI, ICE and the ICACs have opened more than 1,000 domestic investigations into the distribution and possession of child pornography and conducted more than a thousand searches.

Hundreds of individuals have been arrested and charged with crimes to date as a result of this law enforcement effort, with coordination by the Child Exploitation and Obscenity Section of the Criminal Division at the Department of Justice and U.S. Attorneys' Offices across the country. These cases have charged not only offenses related to the possession and distribution of child pornography, but also sexual abuse of children. Further, the investigations have identified several individuals who have previously been convicted of sex offenses and several registered sex offenders.

The multi-agency, multi-jurisdictional P2P initiative, combining the resources of federal, state and local law enforcement, is part of an ongoing effort to keep pace with emerging technologies that are being used to commit, facilitate and even hide crimes. Unlike traditional computer networks, which employ the use of a server to exchange files, peer-to-peer networks allow users to connect their computers directly to one another, without the use of a central server. Once a user installs a peer-to-peer software application on his or her computer, he or she can directly access and search the files designated for distribution on any of the computers that are using the network at that moment in time, and then download desired files to his or her computer.

Investigators and agents from the participating agencies used several techniques – including undercover work – to infiltrate the P2P networks and identify those who have distributed and taken possession of child pornography images.

The maximum federal sentence for the distribution of child pornography is 20 years in prison. The PROTECT Act, enacted on April 30, 2003, also created a mandatory minimum sentence of five years in prison for this crime. If an individual committed a prior sex abuse offense, the mandatory minimum is 15 years in prison and the statutory maximum is 40 years.

The following is a brief rundown of the roles played by various agencies in the P2P operation:

Internet Crimes Against Children Task Forces
In 1998, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) of the Department of Justice funded ICAC Task Forces in jurisdictions all over the country. There are 39 task forces comprised of more than 175 law enforcement agencies.

The 39 ICAC Task Forces conducted an undercover investigation code-named "Operation Peerless" to investigate the distribution of child pornography over the Internet. Undercover operations have identified more than 3,000 computers worldwide sharing child pornography using the P2P networks.

U.S. Immigration and Customs Enforcement, Department of Homeland Security
In September 2003, investigators at the ICE Cyber Crime Center in Virginia initiated a P2P operation known as "Operation Peer Pursuit" to target individuals who exchange child pornography images over the Internet using P2P networks.
Operation Peer Pursuit is an outgrowth of Operation Predator, ICE's comprehensive, nationwide initiative designed to protect young people from pedophiles, human traffickers and other predatory criminals. Since its inception in July 2003, Operation Predator has resulted in the arrest of more than 2,600 child sex predators nationwide.

The Federal Bureau of Investigation
As part of the FBI's P2P operation, codenamed "Peer Pressure," FBI agents and prosecutors from the Child Exploitation and Obscenity Section of the Justice Department developed a protocol for investigating the distribution of images of child pornography through P2P networks. Agents, acting in an undercover capacity, were able to successfully conduct 166 on-line sessions in P2P networks, targeting individuals who were openly offering multiple child pornography images.

RECENT CASES FROM UNITED STATES DISTRICT COURTS IN TEXAS

HOUSTON AREA MAN SENTENCED TO PRISON TERM TO BE FOLLOWED BY A LIFETIME OF SUPERVISED RELEASE FOR POSSESSING CHILD PORNOGRAPHY

On September 30 , 2005, Robert Warren Chapman, 35, of Houston, Texas, was sentenced to more than four years in federal prison without parole for possessing child pornography images using the internet and his home computer in August, 2003.

At a hearing, United States District Judge Melinda Harmon ordered Chapman to a serve 51-month prison term to be followed by a life term of supervised release during which Chapman will be required to register as a sex offender and not have any contact with children under the age of 18 years, including through employment, residence, volunteer work or other activities. He is also ordered to undergo sex offender and/or mental health treatment and not have access or use of the internet or any sexually oriented materials.

Chapman was convicted in April 2005 after pleading guilty to the one count indictment charging him with possessing child pornography – alleged against him in an indictment filed in September, 2003. The charge brought against Chapman is the result of an investigation conducted by agents and officers of the US Secret Service and the Houston Police Department.

The US Secret Service and the HPD executed a search warrant at Chapman's Houston apartment in August, 2003 after his roommate reported seeing images of naked boys on Chapman's computer screen. Over 100-120 images of child pornography were found, including images of children being sexually assaulted by adult men.

HOUSTON AREA MAN TO SERVE PRISON TERM FOR DISTRIBUTING & POSSESSING CHILD PORNOGRAPHY

On September 09, 2005, Ronald Gonzalez, 34, of Spring, Texas, was sentenced to more than eleven years in federal prison without parole for distributing and possessing child pornography.

At a hearing, United States District Judge Keith P. Ellison ordered Gonzalez to serve 135 months in federal prison for distribution of child pornography images using the Internet and his home computer in 2003 and early 2004. Gonzalez will simultaneously be serving 120 months for possessing visual images of child pornography on his home computer in 2004. Judge Ellison characterizing the defendant's crimes of possessing and distributing visual images of child pornography as “photographic sewage”.

In addition to the prison term, Judge Ellison ordered Gonzalez to serve a life term of supervised release following his release from prison during which Gonzalez will be required to register as a sex offender and not have any contact with children under the age of 18 years, including through employment, residence, volunteer work or other activities.

Gonzalez was convicted in April 2005 after pleading guilty to all counts – six counts of distributing child pornography via the internet and two counts of possessing child pornography – alleged against him in an indictment filed in February 2005.

The charges brought against Gonzalez are the result of an investigation conducted by members of the U.S. Immigration and Customs Enforcement (ICE) “Operation Predator”, which focuses its attention on investigating offenses involving the exploitation of children. That investigation showed that Gonzalez was involved in an international Internet group whose members sent and received images of child pornography in 2003 and 2004. The investigation revealed that a computer in Gonzalez's home had been used to distribute over 190 files to members in various Yahoo groups; the files contained photographic images depicting children being sexually assaulted or engaged in sexually explicit conduct.

Members of ICE's Predator Squad executed a federal search warrant at Gonzalez's Spring home in April 2004. Agents found that Gonzalez's computer and various computer disks contained movie and still photographic images of child pornography. Other images of child pornography found on a computer and CD ROMs in Gonzalez's possession resulted in the possession of child pornography charges by the grand jury. Over 1300 images of child pornography were found, including images of children in bondage, with animals and of children being sexually assaulted by adult men.

HARLINGEN MAN TO SERVE 25 YEARS IN FEDERAL PRISON FOR THE PRODUCTION AND RECEIPT OF CHILD PORNOGRAPHY

On July 26, 2005, Eugene Atwood , 37, of Harlingen, Texas, was ordered to serve a total of 25 years in federal prison, without parole, for producing and receiving child pornography via the Internet.

At a hearing held on July 25, 2005, United States District Judge Hilda G. Tagle ordered Atwood to serve 300 months (25 years) in prison for producing child pornography, and 240 months (20 years) in prison - the statutory maximum sentence – for the receipt of child pornography conviction. The court has ordered Atwood serve the sentences concurrently, and thereafter, to be supervised for a period of five years. Lastly, Atwood must pay $2,000 in restitution to two of the child victims. Atwood was convicted of the two federal child pornography charges after pleading guilty to both counts on March 31, 2005.

The investigation that lead to Atwood's arrest began following the discovery of child pornography on a lap top computer left at a local pawnshop. According to allegations contained in the criminal complaint filed with the federal court, upon discovering the material contained on the laptop, pawnshop employees contacted the Harlingen Police Department (HPD). Atwood was identified as the owner of the laptop computer by Harlingen Police. A search of Atwood's residence in Harlingen by HPD police officers resulted in the discovery and seizure of over 8,000 images of child pornography, including several ‘home videos'.

Through a joint investigation with Harlingen Police Department, and the United States Immigration and Customs Enforcement (ICE), Atwood, as well as one child victim, were identified. The ICE lead investigation then lead to additional discoveries, including evidence that established that Atwood had traveled to three states for the purpose of sexually assaulting and recording at least three identified children, and that Atwood contacted over the internet and recorded over a web camera more than two hundred other children.

Moreover, through the outstanding cooperative effort of ICE investigating agents in this case with state and federal agents in Michigan, Ohio and Virginia, two other adult men, who had also engaged in sexually assaulting children, were arrested and prosecuted.

Legal Discussion

Federal Law:

Prosecutions involving child pornography and the sexual exploitation of children are initiated under 18 U.S.C. §§ 2251 through 2260. The substantive statutes are sections 2251, 2251A, 2252, 2252A and 2260 and the relevant definitions are set forth in section 2256. Section 2253 authorizes criminal forfeiture, and section 2254 authorizes civil forfeiture, of the items depicting child pornography, the profits or proceeds obtained from the commission of the crimes, and the property used to commit or promote the commission of the crimes. Section 2255 provides a civil remedy for victims and section 2259 provides mandatory restitution to victims. Section 2257 creates record keeping requirements for items depicting sexually explicit conduct and section 2258 creates a misdemeanor crime for failure to report child abuse.

Title 18 U.S.C. § 2251 sets forth three offenses. Subsection (a) proscribes the employment or enticement of a minor to engage in sexually explicit activity for the purpose of producing any visual depiction of such conduct. Either the visual depiction must be actually transported in interstate or foreign commerce, or mailed, or the person must know or have reason to know that it will be so transported, or the visual depiction must be produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer.

Subsection (b) prohibits any parent, legal guardian, or person having custody or control over a minor to permit such minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.

Subsection (c) penalizes anyone who makes, prints or publishes any notice or advertisement seeking or offering: (1) to receive, exchange, buy, produce, display, distribute or reproduce a visual depiction of a minor engaging in sexually explicit conduct; or (2) to participate in any act of sexually explicit conduct by or with a minor. Such person should know or have reason to know that such notice or advertisement will be transported in interstate or foreign commerce by any means, including by computer or mail.

Section 2251 imposes a mandatory minimum of 10 years' imprisonment and/or a fine to a twenty year maximum for the first offense and a minimum of 15 years' to a maximum thirty years' imprisonment together with a fine for the second offense if the offender has one prior conviction under Chapter 110, Chapter 109A, or Chapter 117, or under the laws of any state relating to the sexual exploitation of children. An offender with two or more such prior convictions faces a mandatory minimum of thirty years with a maximum sentence of life in prison.

Child Pornography
(a) Any person who -

(1) knowingly mails, or transports or ships in interstate or foreign commerce by any means, including by computer, any child pornography;
(2) knowingly receives or distributes -

(A) any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or
(B) any material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer;

(3) knowingly reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer;
(4) either -

(A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly sells or possesses with the intent to sell any child pornography; or
(B) knowingly sells or possesses with the intent to sell any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; or

(5) either -

(A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography; or
(B) knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, shall be punished as provided in subsection (b).

(b)

(1) Whoever violates, or attempts or conspires to violate, paragraphs (1), (2), (3), or (4) of subsection (a) shall be fined under this title or imprisoned not more than 15 years, or both, but, if such person has a prior conviction under this chapter, chapter 109A, or chapter 117, or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 5 years nor more than 30 years.
(2) Whoever violates, or attempts or conspires to violate, subsection (a)(5) shall be fined under this title or imprisoned not more than 5 years, or both, but, if such person has a prior conviction under this chapter, chapter 109A, or chapter 117, or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 2 years nor more than 10 years.

(c) It shall be an affirmative defense to a charge of violating paragraphs(1), (2), (3), or (4) of subsection (a) that -

(1) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct;
(2) each such person was an adult at the time the material was produced; and
(3) the defendant did not advertise, promote, present, describe, or distribute the material in such a manner as to convey the impression that it is or contains a visual depiction of a minor engaging in sexually explicit conduct.

(d) Affirmative Defense. - It shall be an affirmative defense to a charge of violating subsection (a)(5) that the defendant -

(1) possessed less than three images of child pornography; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof -

(A) took reasonable steps to destroy each such image; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such image.

Possession Or Promotion Of Child Pornography.
State Law:

(a) A person commits an offense if:

(1) the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and
(2) the person knows that the material depicts the child as described by Subdivision (1).

(b) In this section:

(1) "Promote" has the meaning assigned by Section 43.25.
(2) "Sexual conduct" has the meaning assigned by Section 43.25.
(3) "Visual material" means:

(A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or
(B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.

(c) The affirmative defenses provided by Section 43.25(f) also apply to a prosecution under this section.
(d) An offense under Subsection (a) is a felony of the third degree.
(e) A person commits an offense if:

(1) the person knowingly or intentionally promotes or possesses with intent to promote material described by Subsection (a)(1); and
(2) the person knows that the material depicts the child as described by Subsection (a)(1).

(f) A person who possesses visual material that contains six or more identical visual depictions of a child as described by Subsection (a)(1) is presumed to possess the material with the intent to promote the material.
(g) An offense under Subsection (e) is a felony of the second degree.