Ninth Circuit Finds Child Pornography Need Not Be Self Produced to Merit Charges for Advertising – U.S. V. Williams

November 7, 2011 by David S. Seltzer

Much of my work as a south Florida child pornography criminal defense lawyer focuses on defending clients accused of possession of child pornography. This is the most common charge, in part because it’s genuinely more common than other child pornography crimes and in part because it’s easier for prosecutors to prove. However, federal law also defines separate crimes for distribution, advertising and other actions with child pornography, and advertising can be construed broadly. In United States v. Williams, the Ninth U.S. Circuit Court of Appeals more precisely defined the crime of advertising child pornography. John Williams of Nevada had argued that he could be convicted of advertising child pornography only if he had made the pornography in question, but the appeals court disagreed.

FBI agents found Williams online through his file-sharing activities, with which he had shared more than 5,000 illegal images. After a search of his mobile home, Williams admitted to viewing and sharing child porn online. He was indicted for possessing, distributing and advertising the distribution of child pornography. He objected only to the advertising charges, arguing that the statute only applies to people who advertise to create child pornography or advertise pornography they actually produced. The district court denied his motion, so he entered a conditional guilty plea that preserved his right to appeal the issue, and the prosecutors dropped the other charges in exchange. This appeal followed.

The sole issue the Ninth Circuit had to consider was whether the statute (18 USC § 2251(d)(1)(A)) requires defendants to personally produce the child pornography they are accused of advertising for distribution. The court decided that it does not. The plain language of the statute suggests otherwise, the court said. It requires only that the defendant “knowingly makes, prints or publishes... [any] advertisement seeking or offering to... distribute or reproduce any [child pornography].” While the statute does refer to the production of child pornography, nothing in its plain language requires a defendant to have personally produced the pornography. The issue has come up in other circuits, the appeals court noted, but all three to have considered it — the Second, Third and Eighth Circuits — have come to the same conclusion. Williams argues to the contrary based on the statute’s phrasing that the offer “involves” rather than “involved” the use of a minor, but construing the statutes this way would take away prosecutors’ ability to enforce the law in many situations. This could not be what Congress intended, the court said.

As a Miami-Dade child pornography criminal defense attorney, I am disappointed but not surprised. It’s not unusual for laws in the present tense to capture behavior that’s in the past; the statute could easily be read in the way prosecutors preferred. Furthermore, it’s the norm for courts to construe child pornography laws broadly, because our society just isn’t sympathetic to child pornography defendants. Even though child porn defendants now face some of the harshest laws in the federal criminal system, some juries and some judges make emotional decisions when confronted with upsetting cases involving child pornography. That’s why I strongly recommend that people accused of these crimes contact an experienced Fort Lauderdale child porn criminal defense lawyer as soon as they realize they will be charged.

Seltzer Law, P.A., represents people around the United States who are facing serious cyber crime or child pornography charges. Our lead attorney, David Seltzer, is an experienced former cyber crime prosecutor who understands how prosecutors build their cases, and where to look for flaws. To learn more or set up a free, confidential case evaluation, send us an email or call 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

Seventh Circuit Reverses Conviction for Child Porn Defendant After Jury Shown Inappropriate Videos – U.S. v. Loughry

Tenth Circuit Upholds Sentence for Supervised Release Violations Despite Lack of Child Porn Evidence – U.S. v. Olinger

Appeals Court Upholds Search Evidence Despite Violation of Arkansas Law – U.S. v. Kelley