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8.185 Sexual Exploitation of Child—Possession of Child Pornography

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8.185 SEXUAL EXPLOITATION OF CHILD—POSSESSION OF CHILD PORNOGRAPHY (18 U.S.C. § 2252(a)(4)(B))

The defendant is charged in [Count _______ of] the indictment with possession of child pornography in violation of Section 2252(a)(4)(B) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, that the defendant knowingly possessed [books] [magazines] [periodicals] [films] [video tapes] [matters] that the defendant knew contained [a] visual depiction[s] of [a] minor[s] engaged in sexually explicit conduct;

Second, the defendant knew [each] [the] visual depiction contained in the [[books] [magazines] [periodicals] [films] [video tapes] [matters]] [[was of] [showed]] [a] minor[s] engaged in sexually explicit conduct;

Third, the defendant knew that production of such [a] visual depiction[s] involved use of a minor in sexually explicit conduct; and

Fourth, that [each] [the] visual depiction had been either

a) [mailed] [shipped] [transported] in interstate or foreign commerce, or

b) produced using material that had been [mailed] [shipped] [transported] in interstate or foreign commerce [by computer [or other means]].

"Visual depiction" includes undeveloped film and video tape, and data that has been stored on computer disk or data that has been stored by electronic means and that is capable of conversion into a visual image.

A "minor" is any person under the age of 18 years.

"Sexually explicit conduct" means actual or simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.

"Producing" means producing, directing, manufacturing, issuing, publishing, or advertising.

Comment

Prior to 1998, 18 U.S.C. § 2252(a)(4) required the possession of at least three visual depictions before an offense had occurred. As part of the Protection of Children From Sexual Predators Act of 1998, Congress amended section 2252(a) to prohibit possession of one visual depiction. At the same time, Congress added 18 U.S.C. § 2252(c), which provides an affirmative defense when, under certain circumstances, the defendant possessed "less than three matters containing any visual depiction." If such a defense has been raised, care should be taken in revising the instruction so that the jury is not confused.

The definitions of "minor," "sexually explicit conduct," "producing," and "visual depiction" are derived from 18 U.S.C. § 2256(1), (2), (3) and (5), respectively. Interstate or foreign commerce is defined by 18 U.S.C. § 10. "Matter" is a physical media capable of containing images such as a computer hard drive or disk. United States v. Lacey, 119 F.3d 742, 748 (9th Cir.1997).

See Lacey, 119 F.3d at 748 (jury instruction for possession of child pornography must include as an element whether defendant knew the "matter" in question contained unlawful visual depictions; such a depiction may be "produced" when a defendant downloads visual depictions from the Internet); see also United States v. Romm, 455 F.3d 990, 1002-05 (9th Cir.2006), cert. denied, 549 U.S. 1150 (2007).

Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir.1999), sets forth a legislative history of the various federal acts dealing with child pornography.

The statute was unconstitutionally applied to a mother who possessed a family photo showing herself and her young daughter exposed because the photo was meant entirely for personal use, in nature, no economic or commercial use was intended, and such possession had no connection with, or effect on, the national or international commercial child pornography market. United States v. McCoy, 323 F.3d 1114, 1132 (9th Cir.2003); but see United States v McCalla, 545 F.3d 750, 756 (9th Cir.2008), cert. denied, 129 S. Ct. 1363 (2009), which held that to the extent the reasoning in McCoy also relied on the local nature of the activity, its reasoning was overruled by Gonzalez v. Raich, 545 U.S. 1 (2005).

Expert testimony is not required for the government to establish that the images depicted an actual minor (i.e., that the images were not computer generated). United States v. Salcido, 506 F.3d 729, 733-34 (9th Cir.2007), cert. denied, 552 U.S. 1330 (2008).

Possession of materials involving the sexual exploitation of minors under § 2254(a)(4)(B) may be a lesser-included offense of receipt of such materials under § 2252(a)(2). United States v. Schales, 546 F.3d 966, 977 (9th Cir.2008).

Possession of materials involving the sexual exploitation of minors under § 2254(a)(4)(B) may be a lesser-included offense of receipt of such materials under § 2252(a)(2). United States v. Schales, 546 F.3d 966, 977 (9th Cir.2008). When possession is charged along with either receipt or distribution and a "lesser-included offense" instruction is not given, the court should ensure that the "separate conduct" requirement under the Double Jeopardy Clause has been satisfied. This could be done either with an appropriate instruction directing that separate conduct be found or by providing the jury with a special verdict form that requires the jury to identify the conduct supporting each conviction. See United States v. Teague, 722 F.3d 1187, 1193 (9th Cir. 2013).

Approved 10/2013