Florida Law, When is Possession of Child Pornography Possession

January 14, 2008 by David S. Seltzer

The language of the child pornography (hereinafter “CP”) statute is clear when interpreted in its plain meaning as it pertains to possession. To be in possession of CP one must “know” (intend) that the images (CP) would be saved on the computer. Commonwealth v. Diodoro, WL 3095476 (Pa.Super.). Mere viewing of CP, absent a showing of knowledge that the images are on the computer, does not constitute possession under the statute. United States v. Perez, 247 F. Supp.2d 459, 484 n. 12 (S.D.N.Y. 2003). The defendant must do some act in furtherance of viewing the images of CP to indicate knowledge that the image is on the computer’s hard drive.

In Diodoro, the defendant viewed child pornography on the Internet, and admitted as such. However, the State presented no evidence that the defendant intentionally downloaded or saved the images, nor that he was aware they were being automatically saved to an Internet cache file. Thus, the Court held, without knowledge, the defendant could not be convicted of knowing possession of child pornography.

The Ninth Circuit upheld a conviction in United States v. Romm, 455 F.3d 990 (9th Cir.2006), finding that the defendant’s admission that he knew the images were automatically saved to a cache drive and consciously erased them was sufficient to uphold a conviction for possession of CP under the statute, as some act in furtherance of viewing the images. The Court went on to say that “because the defendant knew the images were saved [albeit temporarily]…[the defendant] had the ability to copy, print, or email the images to others. Id. at 1000-01. Thus, the key difference in a case where the defendant has no knowledge that the files are being temporarily saved, as in Diodoro, is the knowledge, the act in furtherance to remove the images that the defendant knew where temporarily saved.

Additionally, in United States v. Tucker, 305 F.3d 1193 (10th Cir.2002), the Court upheld the defendant’s conviction for possession of CP, where the defendant intentionally sought out and viewed CP, later went into his cache file (temporary files), and intentionally deleted the files after each online session where he viewed CP. The Court found those actions to be knowing and voluntary possession; thus some act in furtherance of viewing the images.

Furthermore, in United States v. Bass, 411 F.3d 1198 (10th Cir. 2005), the Court held that the defendant’s knowledge of child pornography being saved to his temporary internet files, was reasonably established by the defendant’s actions whereby he attempted to erase the images using two (2) software programs; thus, sufficient for possession charges.
     Thus, the case law seems to be counterintuitive in the sense that they say there was knowing possession because the images were intentionally deleted.