Sixth Circuit Denies New Trial to Child Porn Defendant Who Never Got Clear List of Charges – U.S. v. Tillotson

October 1, 2012 by David S. Seltzer

One of the most basic jobs of a criminal defense attorney is understanding the charges and evidence against them. In my work defending clients from child pornography charges, it’s important to know how many charges my client will face, what kind of charges they are, and what evidence they’re based on. While prosecutors don’t have to disclose all of their evidence, they are required to be specific enough about their charges to permit the defendant to mount a defense. The defendant in United States v. Tillotson, a case from the Sixth U.S. Circuit Court of Appeals, argued that he should get a new trial because his indictment was not specific enough. Jeff Tillotson was convicted of knowingly possessing, distributing and advertising child pornography; that conviction stood after the Sixth Circuit rejected his appeal.

Investigators traced an Internet file server advertising child pornography to Tillotson’s address. On his computers, they found four complete child porn videos as well as many other incomplete or corrupted files that either contained child pornography or had names suggesting child pornography. An expert’s report noted 166 illegal photos and videos recovered from Tillotson’s external hard drive, but left blank an area on the form where he was asked to list files containing “actual visual depictions” of child porn. He moved for a bill of particulars, saying the lack of specificity hampered his defense. The motion was denied and so was an appeal. At trial, the prosecution’s expert said the incomplete files did contain child pornography; Tillotson moved for a mistrial, saying this was an unfair surprise because the indictment listed only four videos found on his computer. This was denied, as was a post-trial motion for a new trial. Tillotson was sentenced to 204 months in prison.

On appeal, Tillotson argues that the district court should have granted his request for particulars or his motion for a new trial. The Sixth Circuit rejected both arguments. On the bill of particulars motion, the Sixth noted that Tillotson cannot win an appeal unless he can show that he suffered an unfair surprise or other prejudice at trial. It found that standard was not met in this case. The indictment said he was being accused of possessing, advertising and distributing child pornography, and the discovery materials included the forensic report, copies of the hard drives at issue and an invitation to view the files. Furthermore, there was no surprise in the expert’s testimony because the forensic report noted 166 total photos and videos, even though none were listed as “actual visual depictions of child pornography.” For the same reasons, the appeals court rejected Tillotson’s arguments for a new trial or a mistrial, finding that the government committed no intentional or inadvertent misconduct.

As a criminal defense lawyer specializing in cyber crimes defense, I sympathize with Tillotson’s arguments. His indictment did not list the 166 partial or corrupt files as containing child pornography. A reasonable person might assume the government did not believe those files were provably illegal, and thus did not plan to bring them up at trial. However, as this case shows, assumptions are dangerous in criminal cases. In my practice, I prefer to find out as many things for certain as I can, and plan carefully for what I think the prosecution might do. In predicting prosecutors’ moves, it helps that I am a former cyber crimes prosecutor for the Miami-Dade State’s Attorney’s office, giving me insight into how prosecutors build serious cases involving child pornography crimes.

Based in downtown Miami, Seltzer Law, P.A., represents clients across the United States who are facing serious Internet or online crime charges. For a free, confidential case evaluation, call us toll-free at 1-888-872-5925 or send us an email today.

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