Statutory construction, assures the Ninth, and verb tense analysis reveal that advertising an offer to distribute child pornography merits a fifteen-year mandatory minimum sentence.
(Actually distributing child porn, by the way, will get you five). United States v. Williams, 2011 WL 5084645 (9th Cir. Oct. 27, 2011), decision available here.
Players: Hard-fought appeal by Reno AFPD Michael Powell. Decision by Judge Thomas, joined by Judge NR Smith and visiting C.D.J. Solomon Oliver, Jr..
Facts: Williams used peer-to-peer software to post and share over 5,000 images of child porn. Id. After FBI agents traced these images to Williams, they searched his home and found a number of suspicious items related to boys. Id. Williams confessed he used internet networks to view and share child porn. Id.
He was indicted on possession, distribution, and (important to this appeal) “advertising the distribution of child pornography in violation of 18 U.S.C. § 2251(d)(1)(A).” Id. Williams moved to dismiss the advertising count, “arguing that the statute only applies to individuals who either advertise to produce child pornography or advertise child pornography that they actually produced.” Id.
The district court denied the motion; Williams entered a conditional plea to the advertising count.
Issue(s): “The sole issue is whether 18 U.S.C. § 2251(d)(1)(A) requires an individual to personally produce the sexually explicit visual depictions of minors that he advertises for distribution.” Id. at *1.
Held: “The plain language of § 2251(d)(1)(A) answers the question before us: There is no requirement that a defendant personally produce child pornography in order for criminal liability to attach.” Id. “In sum, the plain language of the statute and interpretations by our sister circuits lead to the conclusion that personal production is not an element of the crime.” Id. at *2.
Of Note: Williams was charged with three federal child porn crimes: possession (no mandatory minimum); distribution (five year mandatory minimum); and advertising the distribution of child porn (fifteen year mandatory minimum).
The first two charges fall under the familiar child porn statute: 18 USC § 2252A. The third – at issue here – falls within Section 2251, “sexual exploitation of children.”
When you read Section 2251 in its entirety, it is clearly focused not on viewing or distributing child porn, but on actual sexual contact with minors. In other words, by some dramatic overcharging the government obtained a fifteen-year mandatory minimum sentence for the act of “advertising” the distribution of previously-manufactured child porn. Had Williams been convicted of the (more egregious) distribution of child porn, he would have only had a five year mandatory minimum sentence. Compare 18 USC § 2251(e) (advertising) with 18 USC § 2252A(a)(2)(B) (distribution).
The fact that the “advertising” statute carries a fifteen year mand-min, and the other statute’s “distribution” charge carries five, is strong support for Williams' argument that the heavier sentences of § 2251 are intended for defendants who actually interact with kids, instead of someone redistributing existing porn. Williams is unfortunately silent on the mandatory-minimums that are what are really driving this case – Judge Thomas summarily dismisses the defendant’s charging challenge in a brief paragraph at the end of the decision. Id. at *4.
How to Use: Defending a child porn case? Read past Williams statutory construction analysis, ignore its exegesis on verb tenses, and think deeply about the decision’s tolerance of (in our view) a dramatically-overcharged and mis-charged case. Consider that there was no proof that Williams actually had inappropriate contact with a minor, then consider that he got fifteen years for advertising an offer to distribute existing child porn. See DOJ post here.
This is not just a dry little decision on obscure principals of statutory construction – Williams’ broader ramifications make it a must-read opinion for those who defend child porn cases.
For Further Reading: Fair to say we’re not fans of Williams, but all was not bad news in the Ninth this week. On October 27, the Court voted to take the regrettable Nosal case en banc. You’ll remember that Nosal was a dramatic extension of the Computer Fraud and Abuse Act into the context of an employer’s computers. See blog here.
Note that Joe Russoniello (left) was first Nosal’s attorney – then became the US Attorney for the office prosecuting Nosal! See id. Now that Melinda Haag has Joe’s corner office, maybe he can switch again and argue on Nosal’s behalf en banc?
"Advertise Here" gif from http://visainfobd.com/images/ADVERTISE_HERE.gif Image of Joe Russoniello from http://theeliteones.files.wordpress.com/2010/03/joe-russoniello4.jpg
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org