Fifth Circuit Rules Admission of Child Pornography as Evidence Was Permissible – U.S. v. Blank

December 11, 2012 by David S. Seltzer

I wrote here not long ago about an appeals court ruling calling for a retrial because the court incorrectly admitted child pornography videos that had little value as evidence, but likely prejudiced the jury. So I was interested to see another case in which the defendant unsuccessfully argued that his trial court erred in admitting child pornography as evidence, including showing one video and five images to the jury. In United States v. Blank, Travis Hunter Blank was convicted of transporting child pornography as well as possessing child pornography. He appealed not only the admission of the child porn as evidence, but also the sufficiency of the evidence against him and the trial court’s choice to dismiss his first indictment without prejudice. The Fifth U.S. Circuit Court of Appeals upheld the trial court on every issue.

Law enforcement intercepted an email from Blank’s account that had a child pornography video attached. This led to a search of Blank’s home. During the search, Blank voluntarily told a police detective that he had sent the video, that he downloads child pornography and that he has looked at it for the past 10 years. He followed it up with a written confession that said he may have seen 1,000 pictures over the past decade; a forensic search of his computers found 24 images. Law enforcement also recorded phone calls between Blank and family members, in which he made incriminating statements. He later attempted to blame a houseguest. A series of pretrial motions delayed the case enough that Blank moved for dismissal for violation of the Speedy Trial Act. This was granted, but without prejudice, allowing the prosecution to re-file. Blank was ultimately convicted by a jury of transporting and possessing child pornography.

On appeal, he argued that the court should have dismissed the case with prejudice; that the evidence was insufficient for a conviction; and that two exhibits of child pornography should not have been admitted. The Fifth Circuit rejected all of these arguments. On the Speedy Trial Act violation, it found that Blank’s offense was serious; the Speedy Trial Act violation was related to the overcrowded docket; and the delay did not prejudice Blank’s case. All these factors together weighed for dismissal without prejudice, the Fifth said. On the sufficiency of the evidence, Blank argued that the evidence made it equally likely that the houseguest was at fault. The Fifth rejected this argument, citing numerous holes in his theory, including his own written confession. Finally, it rejected the argument that the court should not have shown the pornography to the jury even after he stipulated that the material was child porn. A 2009 Fifth Circuit case, U.S. v. Caldwell, said defendants may not “stipulate the evidence away,” and Blank did not distinguish his case.

The opinion in this case didn’t reference the earlier case ordering a new trial for a defendant whose jury saw child pornography, and that case, from the Third Circuit, did not reference Caldwell. That’s too bad, because it would be interesting to see whether the judges involved in these cases feel there’s a circuit conflict. As an experienced cyber crimes defense lawyer, I believe it’s unwise to show juries child pornography, because the material tends to provoke strong emotional reactions. Under that influence, it can be harder for juries to make the rational decisions they need to make about whether the case has been proven beyond a reasonable doubt. Child pornography charges carry heavy penalties, so it’s vital that juries be given the tools they need to do their job fairly.

If you or someone you love is charged with serious crimes involving computers, technology and the internet, don’t hesitate to call the experienced cyber crime attorneys at Seltzer Law, P.A. You can reach us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

Third Circuit Orders New Trial for Defendant Whose Jury Saw Child Pornography Videos – U.S. v. Cunningham

Federal Judge Throws Out Charges Against Man Accused of Online Solicitation of a Minor

Seventh Circuit Rules Defendant Cannot Suppress Voluntary Confession to Police – U.S. v. Littledale