Examining Whether Possession and Distribution of Child Pornography Are the Same Crime

July 26, 2010 by David S. Seltzer

As a Fort Lauderdale child pornography criminal defense attorney, I frequently represent and read about cases in which a defendant is charged with possession of child pornography as well as distribution of the same child pornography. It is (unfortunately) established in Florida law that defendants may be charged separately for possession and distribution of the same materials, as well as possession of several copies of the same material. Similar issues arose on the federal level in U.S. v. Faulds, 2010 WL 2680307 (7th Cir. July 8, 2010), an appeal of a federal child pornography prosecution, which ultimately failed. But as a post on the CYB3RRIM3 blog by law professor Susan Brenner pointed out, the ruling makes an interesting point about the fact that distributing an electronic file doesn’t mean giving up its possession.

The Constitution protects criminal defendants from “double jeopardy” -- prosecution twice for the same crime, or for two different offenses that arise from the same action. In examining whether that protection is violated, courts use a U.S. Supreme Court ruling from the 1930s, Blockburger v. U.S., 284 U.S. 299 (1932), in which the court upheld a conviction for selling illegal drugs to the same person on two different occasions. James Faulds Jr., 39 and of central Illinois, was accused of possessing child pornography as well as distributing it to a federal law enforcement officer through a file server Faulds maintained. He was convicted in 2008 (after a trial in which he served as his own defense attorney) and sentenced to 20 years in federal prison for the distribution and 10 years for the possession.

Faulds appealed, still acting as his own defense lawyer, arguing that conviction on both counts was double jeopardy because the convictions were probably based on possession and distribution of the same materials. (The prosecution didn’t specify which materials were the basis of which counts.) Under the Blockburger ruling, defendants may not be charged for a crime that is a “lesser included” crime of another charge in the same case, which could include possessing an object as well as distributing it. As it turns out, the distribution count was based on downloading that happened more than a month before the possession count, so the court found that they were factually distinct. It also noted that the Blockburger test is based on the idea that contraband is a physical object. Unlike with sales of drugs or illegal weapons, Faulds was able to distribute an electronic copy of the child pornography, but retain the original for his own use. That means that possession of child pornography after distribution is not a lesser included crime of distributing it under Blockburger.

As a Miami-Dade child pornography criminal defense lawyer, I’m not surprised by this ruling. Courts have generally rejected double jeopardy arguments in child pornography cases, including, as noted above, arguments about multiple copies of the same image. And in this case in particular, the argument that possession was a lesser included offense of distribution was weak because of the timing of the possession and distribution charges. In fact, Professor Brenner blogged last year about another case in which a court rejected a double jeopardy argument based on separate counts for receiving and possessing child pornography, even though possession is clearly an element of receipt.

No doubt this court and others like it had solid legal footing. But as a West Palm Beach child pornography possession criminal defense attorney, I don’t believe courts are typically very sympathetic to arguments by child pornography defendants. Despite all of the protections offered by the Constitution and caselaw, child pornography crimes create strong feelings among judges, prosecutors and juries, which can make it difficult to succeed with an argument based on legal protections. Arguments based on double jeopardy and similar issues can be perceived as “technical” rather than factual, even though their outcomes are of course extremely personal and factual to the defendant. I believe there’s a strong double jeopardy argument to be made by defendants facing receipt and possession charges, and I will continue to look for cases examining that issue and related issues.