The New York Court of Appeals held that a conviction for possession of child pornography, found in “cache files,” or temporary internet files, under New York law, requires the prosecution to show that the defendant knew that pornography could be found in such files. Furthermore the court held that merely viewing web pages with child pornography under New York law does not constitute either possession or procurement of child pornography.

James D. Kent was convicted on two counts of procurement of child pornography and 134 counts of possession. The Court of Appeals reversed the convictions as to two counts. These two counts refer to a web site, entitled “School Backyard” found in the cache on his computer. While the presence of the site in the computer’s cache indicates that Kent viewed the site there is no evidence that he “downloaded, saved, printed or otherwise manipulated or controlled the image while it was on his screen.”

New York law requires that both procurement and possession require possession and control of the pornography. But in relation to the “School Backyard” website, where there was no evidence that Kent knew the site was being kept in his cache and where, unlike in the other 134 counts he did not save the photographs it cannot be said that he possessed or controlled the photographs.

The court pointed out that unlike New York law Federal law makes it illegal to “knowingly possesses, or knowingly accesses with intent to view” child pornography. It does not require possession or control of the photographs or the website. It merely requires accessing photographs or web pages with the intent to view them. As a result if Kent had been tried in Federal court Kent could have been convicted on the two counts and the court suggested that New York could amend its laws to adopt the Federal language.

While the court remanded Kent’s case for resentencing it is doubtful that he will benefit from the the reversal on the two counts. The trial court sentenced him to concurrent indeterminate prison terms of one to three years. Thus, unless the trial court has a change of heart he is likely to get the same one to three year sentence.

Theodore J. Schaefer was convicted of possession of child pornography. He was sentenced to 97 months in prison and 10 years of supervised release. On appeal he challenged two conditions of the supervised release, Specifically he challenged provisions stating:

The defendant shall have no contact with children under the age of 18
(including through letters, communication devices, audio or visual devices, visits, electronic mail, the Internet, or any contact through a third party) without the prior written consent of the probation office.

The defendant is prohibited from places where minor children under the age of 18 congregate, such as residences, parks, beaches, pools, daycare centers, playgrounds, and schools without the prior written consent of the probation office.

Schaefer challenged the conditions on the grounds that they violated his constitutional right to parent his children and that the conditions “are not narrowly tailored, or reasonably related to his offense, his history and characteristics, or protection of the public.” He vigorously argued that his conviction was for possession and not distribution of child pornography. ¹ The Eighth Circuit Court of Appeals found that the trial court was within it discretion in imposing the special conditions. Special conditions

must be reasonably related to the nature and circumstances of the offense of conviction, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medical, or other correctional needs. . . Second, a special condition also must involve no greater deprivation of liberty than is reasonably necessary to deter criminal conduct, to protect the public from further crimes of the defendant, and to provide for the defendant’s educational, vocational, medical, and other correctional needs. Finally, a special condition must be consistent with any pertinent policy statements issued by the Sentencing Commission. In fashioning a special condition of supervised release, a court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.

The Court found no interruption in the parenting process since Schaefer’s children would be over eighteen by the time he got out of prison. Furthermore it found sufficient evidence in the file to support the special conditions. At one point Schaefer talks about selling a friend’s daughter. He also wanted to trade the pornography and would have done so except for a computer glitch. As a result the appellate court upheld the special conditions, noting that the trial judge maintained jurisdiction to vary the conditions as necessary.

Yesterday, we looked at the case of a pedophiliac who was convicted of attempting to have sex with a government agent who he thought was a fourteen year old girl.

Today we look at pedophilia from a different angle. Clyde M. Hall was convicted of pedophilia related offenses in 1989 and 1999. After being release from state custody in New York in 1999 he was immediately arrested and convicted in Federal Court for possession of child pornography. He was sentenced to 63 months in custody and three years of supervised release. He participated in a program while in prison and he was released in 2004. Over the next several years he spent 28 months out of custody. During that time there were no instances of child abuse. His supervision was revoked in 2007 after he had sex with an adult and was found in possession of pornography. He was sentenced to 25 months in prison and 25 years of supervision with very strong conditions placed on his release.

Prior to his release the government moved to have him declared a “sexually dangerous person” pursuant to § 4248(a),” His release was stayed pending a hearing. Two experts testified for the government and one for Hall. All used actuarial tests, psychological tests, and their clinical judgment. But the trial court found that the government failed to prove by clear and convincing evidence that Hall is a sexually dangerous person. Each of three factors must be proved. First, that he has been convicted of pedophilia related crimes. Second that he suffers from a mental illness and finally that he is unable to control himself when around children. There was no question about the first two. But neither the trial court nor the Fourth Circuit Court of Appeals found by clear and convicncing evidence that he was a danger to children. They pointed out that he had not committed a sex act involving a child since 1999, Furthermore there were strong conditions placed upon his release and the consequences of violating the release were severe. Hall understands his illness and he understands the consequences of any failure to follow the conditions of release.

The Fifth Circuit Court of Appeals reversed due to insufficient evidence that the defendant, Keith Moreland, knew that photographs of child pornography were located on his computer.

Keith’s wife Deana found an internet site with child pornography in the history of two computers that were kept in their living room and called the sheriff’s department.The only people with access to the computers were the Morelands and Keith’s terminally ill father, George. All users used the same password to log-on the the computers.

A police investigator found 112 picture which were possibly child pornography in the slack space (or orphan files) of the hard drive. These are files that have been deleted from the computer but are still available. The origin and the date of the download of files in the slack space are generally impossible to determine, Matthew Manley, a local police officer inspected the computers and testified about what he found. He was not offered as an expert in either computers or child pornography. He was unable to determine when the pictures were downloaded, where they were downloaded from or who downloaded them. Nor could he testify as whether the pictures were pornography or not.

The Fifth Circuit concluded

that the evidence was insufficient to support a finding beyond a reasonable doubt that Keith knowingly possessed the images in the computers because the evidence does not sufficiently demonstrate that a rational jury could find beyond a reasonable doubt that Keith had knowledge that the images were in the computers or that Keith had the requisite knowledge and ability to access them and to exercise dominion or control over them.

As a result the court reversed the conviction finding that there was insufficient evidence that Keith either knew that there was pornography on the computer or that he had the technical ability to retrieve the pictures. Both are necessary to convict one of possession of child pornography.

Robert Finn, the Roman Catholic Bishop of Kansas City Missouri, was indicted Friday on misdemeanor charges of failure to report child abuse by one of his priests. The priest, Rev. Shawn Ratigan was indicted in May. This is the first time an American bishop has been criminally charged with failure to comply with mandatory reporting requirements.

Most states have mandatory reporting requirements. While the laws vary from state to state they generally requires specific professionals to report suspected incidents of child abuse to the authorities. The Missouri law includes ministers in the list of professionals required to report suspected child abuse.

As a general rule citizens do not have a duty to report the occurrence of a crime. However states tend to require individuals who have a special relationship with particularly vulnerable groups such as children, the disabled or senior citizens. Thus teachers, medical personnel, social workers and others with knowledge of the physical abuse are required to report the abuse of their juvenile clients, patients, students, etc.

Finn and the Diocese of Kansas City-St. Joseph are accused of not reporting knowledge of a priest taking pornographic pictures of young girls. Finn has admitted knowing about Ratigan’s photographs as early as December 2010 but he did not report the information to the authorities until May. In that time Ratigan continued to attend church events and photographed at least one young girl.

Three years ago as part of a $10 million dollar settlement of child abuse claims by Kansas City Diocese, Flinn promised to report cases of suspected child abuse.

Brian Rogers, a non-commissioned Naval officer at the Brunswick Naval Air Station, sold a computer he no longer needed. But he failed to remove the child porn from it. The buyer reported the pornography to the local police who initiated an investigation. To assist they brought in the state computer crimes unit and the Naval Criminal Investigative Service (NCIS).

A search warrant was obtained for Roger’s house and plans were made to serve it while he was on the base. His commanding officer agreed to order him to go home at the scheduled time for the search.

Once he got home, he was interviewed by the local police and the state computer crimes unit. They told him that he was not going to be arrested that day and they did not read him his Miranda rights. After some time he agreed to go the police station with them where they continued the interrogation. Eventually an officer from NCIS joined the interrogation, first giving him the military version of the Miranda rights.

Under Miranda a statement generally cannot be used against a defendant unless it is the result of interrogation occurring while the defendant is in custody. Here there were basically three statements. The first occurring at the house. The second at the station by the police officers and the third by the NCIS officer after giving Rogers his Miranda rights.

The primary question here was which, if any of the three statements were made while Rogers was in custody.The First Circuit in an oppinion written by retired Supreme Court Justice David Souter ruled that the first statement was made while he was in custody since he had been ordered by his commanding officer to go home and presumably to cooperate with the police when he got there. The second statement was basically a continuation of the first and was also done without the benefit of Miranda warnings. While the NCIS officer gave the equivalent of Miranda warnings it was not sufficiently distinguished from the first two statements. Rogers had already given two statements and it is doubtful that anything said in the third had not already been said. Furthermore the NCIS officer told him that she was not in the command structure and therefore she could not countermand his officer’s order,

The Circuit Court remanded the case to the District Court to determine if sufficient curative action occurred to distinguish the statements. If not the conviction must be reversed.

Randy Lee Johnson, Jr. was tried in Federal Court on charges of receiving and possessing child pornography. On appeal he claimed that convicting him on both counts violated the Double Jeopardy Clause. Furthermore, Johnson and the government agreed that in instructing the jury the judge erred as to the jurisdictional element of the receipt charge.. ¹ The Government agreed that Johnson could not be convicted of both receipt and possession of child pornography without violating the Double Jeopardy Clause. But if argued that there was suffient evidence to uphold the receipt charge.

The primary question before the court was which test to use in determining whether there is sufficient evidence when the trial court misinstructs the jury. When the sole claim before the trial court is whether there is sufficient evidence to support a conviction and there is no question regarding an incorrect instruction the test is “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” But the Eighth Circuit ruled that when the jury is misinstructed it is necessary to have a stricter test. The proper test in such instances where there is no objection to the court’s erroneous instruction is either that “a conviction may be upheld against a sufficiency challenge where a rational jury could have found, beyond a reasonable doubt, each element of the offense as charged in the jury instructions.” or “the evidence is so overwhelming or incontrovertible that there is no reasonable doubt that any rational jury would have found that the government proved the statutory element.” In this case the first test is not applicable since the government’s evidence did not fit with the instruction as given.

Therefore the question was whether the court should use the “any rational trier of the fact test” as used when there is no question as to jury instruction and as urged by the government or the “overwhelming or incontrovertible test” as urged by Johnson. The Court chose the latter, finding that the Due Process Clause and the Sixth Amendment’s requirement if a jury trial mandate that the stricter test be used. Since there was some evidence that Johnson did not received the child pornography over the internet the court reversed the conviction on the receipt charge and remanded the case to the trial court.

Since only the possession of child pornography charge remains the Court did not consider the Double Jeopardy issue.

“SJ” a fifteen year old girl found nude pictures of herself on her guardian’s computer. She also found a hidden camera in the bathroom. She reported her findings to the police.

They performed a “knock and talk” at the residence of Jon R. Hughes. ¹

Prior to the “knock and talk” the police learned that Hughes’ mental state was very fragile and that he needed involuntary hospitalization. They did not plan to arrest him at the end of the “knock and search.” Instead they planned to get consent to search his computer and to hospitalize him.

Eventually he was arrested and raised search and Miranda issues before the Federal Court. The officers twice interview Hughes.The first time was during the “knock and search/” The court ruled that Miranda warnings were not necessary. Miranda warnings are only mandated when there is a interrogation and the person is effectively in custody. In this case the Court ruled that Hughes was not in custody. The interview occurred in his home. The police did not plan to arrest him and he was not arrested on that day. His mental state was poor. In fact he had an anxiety attack in the middle of the interview. But that standing alone does not show that the interview was involuntary.

Hughes claimed that his consent to search the computer was not voluntary due to his mental state. The court founhd that Hughes consent to search the computer or his lack thereof was immaterial. By the time the officers requested his consent he had already given them enough information to get a search warrant. Therefore under the theory of inevitable discovery his consent was immaterial.

The Department of Homeland Security learned that there was pornography on computers at Terry Boll’s residence. They got a search warrant. They discover that seven people live in the house and there are ten computers. Eventually they learn that there is child porn on three of the computers and that two of these computers belong to Boll. ¹ This should be the end of the case. There is no way the government is going to be able to prove beyond a reasonable doubt that Boll possessed the pornography. Any criminal defense attorney worth his/her salt can convince a jury that there is a reasonable doubt that someone else put the pornography on the computers even if boll owned them. ² t is unlikely anyone will be charged.

But Boll apparently has not listened to enough police shows on TV. If he had he would have heard the police give the Miranda warning regularly. He seems to know that anything he says can be used against him. ³ Just the same, he answers the agent’s questions:

Agent Scherer: I asked him if he had an explanation about why there was child pornography on his computer.

Government: How did he respond?

Scherer: He replied I guess you caught me.

Government: How did you respond to that?

Scherer: I asked him further questions about how the child pornography got on there, and he stated, well, they are my computers, aren’t they.

Case lost. Not only did Boll lose the case but his attorney had the nerve to argue insufficiency of the evidence on appeal. His answers to the questions gave the government all it needed to convict.

Generally the police won’t ask any questions unless they need the information to charge a crime or get a conviction. Often if you refuse to answer police questions they walk away without even charging you. But by answering the questions you give them the information they need to charge you or to get a conviction.

Daniel Szymanski pled guilty in the United States District Court to receiving child pornography. At the time of the plea the judge was hesitant to take the plea because it required a five year minimum sentence and possession of child pornography had no minimum sentence. What the judge, the defense attorney, the defendant and at the time of the plea the United States attorney did not realize is that unlike possession of child pornography, receiving child pornography require knowledge at the time of the receipt that the pornography portrays minors. ¹

Rule 11(b) of the Federal Rules of Criminal procedure requires that the judge when taking a sentence voir dire a defendant to make sure that he/she understand the charges he/she is pleading to. The voir dire must include a discussion of the major elements of the charge. The element of the of the offense requiring knowledge of the age of the child is not in the statute. Rather it was implied by the Supreme Court some years ago. Here it is clear that the Court did not voir dire on whether Szymanski knew at the time that he received the pictures that they were of a minor. In fact he told the probation officer who was writing the probation report after the plea that he did not know the pictures were of a minor until after he received them.

While a minor violation of rule 11(b) may not require a reversal in this case the court determined that the interests of justice required that the conviction be reversed and that the case be remanded to the District Court.