Kendall Child Pornography Defense Lawyer
Our sex crimes attorney specialize in state & federal charges
Child pornography offenses are rightfully taken very seriously by state and federal law enforcement agencies. In fact, federal, state, and local law enforcement agencies often work together to investigate offenses that exploit minors for commercial purposes. A wrongful accusation of a child pornography offense can follow someone around for years even after the accusation is proven false. Nevertheless, people who are identified in the early stages of a criminal investigation are often later found not to have been involved with the suspected crime. If you or someone you know is under investigation or has been wrongfully accused of a child pornography offense in Florida, we recommend immediately retaining a lawyer. Our Florida child pornography defense lawyer represents people who have been accused of a child pornography offense in Kendall FL and surrounding areas.
How state child pornography offenses become federal charges
Today, most child pornography is produced and distributed by using digital technology. The internet makes it possible for people in various locations to gather in online spaces and secretly exchange illegal images of minors. Compared to other crimes, child pornography offenses become federal cases more readily. Some of the factors that can make a state crime a federal offense include:
- activity that takes place within the stream of interstate or international commerce
- activity that takes place on federal government property
- activity that takes place in a U.S. territory
- activity that involves a federal government agency
- activity that involves a federal government employee or official
Federal courts adopt a very general interpretation of activity that occurs within the stream of interstate commerce. Cases that involve the defendant transmitting or receiving images to or from across state lines or an international border are more obvious examples of situations that implicate federal jurisdiction. However, federal courts also exercise jurisdiction over cases in which all of the activity occurs in one state, but the defendant used a computer or camera that was manufactured in another country. Therefore, most child pornography cases have at least one element that opens the case up to the potential of being prosecuted in federal court.
Defendants who are charged in federal court for a child pornography offense may also be charged for a state child pornography offense at the same time. Local and federal law enforcement agencies often work together to investigate child pornography and gather evidence. However, the defendants may be charged in state court, federal court, or both. Because the state and federal court systems mostly operate independently, the defendant may be convicted in both cases for crimes that arise out of the same criminal activity. The separate convictions would not violate the Constitution’s double jeopardy clause because the two cases are adjudicated in separate court systems.
How child pornography crimes are investigated
Child pornography is mostly produced and exchanged in secrecy. To combat the crime, law enforcement agencies often must also move covertly. Federal and local law enforcement agencies often work together to conduct sting operations to discover and investigate child pornography-related activity. During a sting operation, one or more law enforcement officers go undercover online and pose as someone who has an interest in child pornography. The undercover officer may pretend to be a buyer, seller, or producer of child pornography, or the undercover officer may pose as a minor who is vulnerable to being approached by people who are looking to exploit a minor.
Child pornography sting operations take place in areas of the internet that are more likely to attract child predators and people who are looking to exchange illegal materials. Some examples of online spaces in which child pornography-related activity is more likely to take place include:
- online classified websites
- peer-to-peer file sharing sites
- certain types of message boards
- chat rooms
- the dark web
As the undercover officer makes contact with people in the online space, the officer engages further with people to gather information and form connections with people who are involved with child pornography. When the law enforcement agency has gathered enough evidence, the agency typically conducts a raid and arrests the parties it suspects of engaging in illegal activity.
Do not say anything that might incriminate you. Speak with an attorney first.
Charged with possession of child pornography in Kendall FL
Possession of Child Pornography is the most basic child pornography charge under state and federal law. Possession is also a foundational element in most child pornography offenses that have more severe sentences. In Florida, an individual may be convicted for possessing child pornography if he or she has actual or constructive possession of a depiction that includes a minor engaging in sexual activity.
Prosecutors charge one count of possession for each depiction the defendant is accused of having. If convicted, the defendant may be sentenced separately up to the maximum sentence for each count. Therefore, if a defendant is charged with 300 counts of child pornography, the court may sentence the defendant up to five years in prison and a $5,000 fine and multiply the sentence by 300 counts.
ACTUAL POSSESSION VS. CONSTRUCTIVE POSSESSION
Actual possession is what most people think of when they hear of a defendant being charged for possessing an illegal item. Within the context of a child pornography case, examples of actual possession include:
- the defendant having a thumb drive with sexual images of a minor physically stashed or stored on his or her body
- the defendant has a phone in his or her pocket that contains sexual photos of a minor received via text message
- the defendant is storing a laptop that contains sexual images of minor inside of a backpack the defendant is wearing
- the defendant has a digital storage drive under his or her seat while driving in a car, and the storage drive contains sexual images of a minor
The lines become more blurred in cases in which the defendant is accused of constructively possessing child pornography. An individual has constructive possession if he or she:
- has the illegal item stored in his or her desk at work
- has the illegal item stored in an assigned storage unit
- has the illegal items stored in the truck of his or her car
- has the illegal item stored in his or her bedroom closet at home
Prosecutors are more likely to have a difficult time proving constructive possession if the illegal item is found in a shared space. For example, if law enforcement officers discover illegal images on a public computer at a library or the basement of a house the defendant shares with roommates, proving who exercised control over the images may be more challenging.
PRESUMPTION OF PROMOTION IN CHILD PORNOGRAPHY CASES
A surprising feature in Florida’s laws against child pornography is the ease with which a charge for possession can become a charge for promoting child pornography. If a defendant is caught with three or more copies of a sexual depiction of a child, the court may presume the defendant had the intent to promote child pornography. Promotion of child pornography is a second-degree felony with a maximum penalty of 15 years in prison and a fine of up to $10,000.
AGGRAVATED POSSESSION OF CHILD PORNOGRAPHY
There are certain aggravating factors that can allow Florida courts to enhance the sentencing in child pornography cases. If an individual is in possession of 10 or more images of child pornography if at least one image contains any of the following:
- a child under the age of five
- sadomasochistic abuse that involves a child
- sexual battery that involves a child
- bestiality that involves a child
- any movie that involves a child without regard to the length of the movie or whether the movie has sound
Aggravated Possession of Child Pornography is a second-degree state level felony. If convicted, the defendant may be sentenced to 15 years in prison and a fine of up to $10,000.
Promotion of a sexual performance by a child
An individual may be convicted for promoting a sexual performance by a child if he or she produces, directs, or promotes any sexual performance by a minor. The state law against promoting a sexual performance by a minor is very general. There are no parameters within the statute that specify whether promotion refers to sending one email that contains a sexual image of a minor or whether sharing a link on social media that directs the visitor to a sexual depiction of a minor is an act of promoting child pornography. Consequently, a person may be charged for promoting child pornography even if it appears that he or she transmitted a single file that contained a sexual depiction of someone who is under 18 years old.
An individual whose computer downloads a virus may be suspected of promoting child pornography if the virus transmits child pornography to other computers that communicate with the affected device. However, the individual’s defense attorney can challenge the charge by providing evidence of the computer virus infection and the defendant’s good faith effort to have the virus removed. There would also likely be a digital record that would prove the defendant never accessed the file while after it was unknowingly downloaded to the individual’s computer by a virus.
Transmission of materials harmful to a minor
Not only is it illegal to send or transmit sexual depictions of a minor, but it is also illegal to transmit sexual material to a minor. Florida law does not directly list materials that are harmful to minors. However, material harmful to a minor is defined as any type of content that depicts nudity or sexual content that primarily appeals to a prurient, shameful, or morbid interest that is patently offensive to prevailing standards in the adult community regarding what is suitable materials or conduct for minors. One important element prosecutors must prove in establishing a charge of Transmission of Materials Harmful to a Minor is that the material is without serious literary, artistic, political, or scientific value to minors. The statute includes materials that are transmitted through email or instant messaging.
People who engage in sexting may be charged with transmission of materials harmful to children if one of the parties involved is a minor. The law applies to people of all ages, therefore, it is critical that parents discuss the risks sexting poses for teens and even younger children.
Transmitting Materials Harmful to a Minor is a third-degree felony. If convicted, the defendant may be sentenced to up to five years in prison and a fine of up to $5,000.
Use of a child in a sexual performance
Anyone who authorizes or employs a minor to participate in a sexual performance may be convicted for the Use of a Child in a Sexual Performance. Parents, guardians, and custodians may also be charged and convicted if they give permission for a child who is in their care to participate in a sexual performance. The terms “guardian” and “custodian” are not strictly limited to people who are legally responsible for supervising a child. Therefore, people who are in the role of supervising a child for a short period of time may also be convicted under the statute. Additionally, prosecutors must prove the defendant knew the character and content of the performance.
Use of a Child in a Sexual Performance is a second-degree felony. If convicted, the defendant may be sentenced to 15 years in prison and fined a maximum of $10,000.
Kendall FL child pornography defense lawyer
Child pornography cases involve sensitive subject matter and are often prosecuted in state and federal court. Therefore, defendants who have been accused of a child pornography-related offense require the assistance of a specialized attorney. Joffe Law specializes in working with people who are under investigation and those who have been formally charged with a child pornography offense. We will leverage our professional resources, knowledge, and experience to defend you against the serious charges that have been filed against you. Call the professionals at Joffe Law today to receive a case evaluation.