Click Here to Watch How To Find A Lawyer by Kent Morlan
Click Here For The Best Buffalo Criminal Defense Lawyer Directory
If no lawyer is listed, call 918-582-6422 and MoreLaw will help you find a lawyer for free.
Description: Buffalo, New York criminal law lawyer represented Defendant charged with activities relating to material containing child pornography in violation of 18 U.S.C. 2252A and theft of public property in violation of 18 U.S.C. 641.
18 U.S.C. 2252 provides:
a) Any person who— (1) knowingly mails, or transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any child pornography; (2) knowingly receives or distributes— (A) any child pornography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or affecting interstate or for- eign commerce by any means, including by computer; or (B) any material that contains child por- nography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or af- fecting interstate or foreign commerce by any means, including by computer; (3) knowingly— (A) reproduces any child pornography for distribution through the mails, or using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer; or (B) advertises, promotes, presents, distrib- utes, or solicits through the mails, or using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any material or purported ma- terial in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains— (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct; Page 487 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2252A 1 So in original. The period probably should be a comma. (4) either— (A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), know- ingly sells or possesses with the intent to sell any child pornography; or (B) knowingly sells or possesses with the intent to sell any child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting inter- state or foreign commerce by any means, in- cluding by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting inter- state or foreign commerce by any means, in- cluding by computer; (5) either— (A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), know- ingly possesses, or knowingly accesses with intent to view, any book, magazine, periodi- cal, film, videotape, computer disk, or any other material that contains an image of child pornography; or (B) knowingly possesses, or knowingly ac- cesses with intent to view, any book, maga- zine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer; (6) knowingly distributes, offers, sends, or provides to a minor any visual depiction, in- cluding any photograph, film, video, picture, or computer generated image or picture, whether made or produced by electronic, me- chanical, or other means, where such visual depiction is, or appears to be, of a minor en- gaging in sexually explicit conduct— (A) that has been mailed, shipped, or transported using any means or facility of interstate or foreign commerce or in or af- fecting interstate or foreign commerce by any means, including by computer; (B) that was produced using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer; or (C) which distribution, offer, sending, or provision is accomplished using the mails or any means or facility of interstate or foreign commerce, for purposes of inducing or persuading a minor to participate in any activity that is illegal; or (7) knowingly produces with intent to dis- tribute, or distributes, by any means, includ- ing a computer, in or affecting interstate or foreign commerce, child pornography that is an adapted or modified depiction of an identi- fiable minor.1 shall be punished as provided in subsection (b). (b)(1) Whoever violates, or attempts or con- spires to violate, paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but, if such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involv- ing a minor or ward, or the production, posses- sion, receipt, mailing, sale, distribution, ship- ment, or transportation of child pornography, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years. (2) Whoever violates, or attempts or conspires to violate, subsection (a)(5) shall be fined under this title or imprisoned not more than 10 years, or both, but, if such person has a prior convic- tion under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or trans- portation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years. (3) Whoever violates, or attempts or conspires to violate, subsection (a)(7) shall be fined under this title or imprisoned not more than 15 years, or both. (c) It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) that— (1)(A) the alleged child pornography was pro- duced using an actual person or persons engag- ing in sexually explicit conduct; and (B) each such person was an adult at the time the material was produced; or (2) the alleged child pornography was not produced using any actual minor or minors. No affirmative defense under subsection (c)(2) shall be available in any prosecution that in- volves child pornography as described in section 2256(8)(C). A defendant may not assert an affirm- ative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) unless, within the time provided for filing pretrial mo- tions or at such time prior to trial as the judge may direct, but in no event later than 14 days before the commencement of the trial, the de- fendant provides the court and the United States with notice of the intent to assert such defense and the substance of any expert or other specialized testimony or evidence upon which the defendant intends to rely. If the defendant fails to comply with this subsection, the court shall, absent a finding of extraordinary circum- stances that prevented timely compliance, pro- hibit the defendant from asserting such defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) or presenting any evi- dence for which the defendant has failed to pro- vide proper and timely notice. (d) AFFIRMATIVE DEFENSE.—It shall be an af- firmative defense to a charge of violating sub- section (a)(5) that the defendant— (1) possessed less than three images of child pornography; and (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof— (A) took reasonable steps to destroy each such image; or (B) reported the matter to a law enforce- ment agency and afforded that agency ac- cess to each such image. (e) ADMISSIBILITY OF EVIDENCE.—On motion of the government, in any prosecution under this chapter or section 1466A, except for good cause shown, the name, address, social security num- ber, or other nonphysical identifying informa- tion, other than the age or approximate age, of any minor who is depicted in any child pornog- raphy shall not be admissible and may be re- dacted from any otherwise admissible evidence, and the jury shall be instructed, upon request of the United States, that it can draw no inference from the absence of such evidence in deciding whether the child pornography depicts an actual minor. (f) CIVIL REMEDIES.— (1) IN GENERAL.—Any person aggrieved by reason of the conduct prohibited under sub- section (a) or (b) or section 1466A may com- mence a civil action for the relief set forth in paragraph (2). (2) RELIEF.—In any action commenced in ac- cordance with paragraph (1), the court may award appropriate relief, including— (A) temporary, preliminary, or permanent injunctive relief; (B) compensatory and punitive damages; and (C) the costs of the civil action and reason- able fees for attorneys and expert witnesses. (g) CHILD EXPLOITATION ENTERPRISES.— (1) Whoever engages in a child exploitation enterprise shall be fined under this title and imprisoned for any term of years not less than 20 or for life. (2) A person engages in a child exploitation enterprise for the purposes of this section if the person violates section 1591, section 1201 if the victim is a minor, or chapter 109A (involv- ing a minor victim), 110 (except for sections 2257 and 2257A), or 117 (involving a minor vic- tim), as a part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and com- mits those offenses in concert with three or more other persons.
18 U.S.C. 641 provides:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
Outcome: Defendant is sentenced to the custody of Bureau of Prisons for a term of 96 months on Count 1, and six (6) months on Count 2 to run consecutively; and six (6) months pursuant to 18 U.S.C. § 3147, to run consecutive to all other counts for an aggregate total of 108 months. Following his release from the Bureau of Prisons, defendant shall be placed on supervised release for a term of 10 years on Count 1, and one (1) year on Count 2, to run concurrently. $5,000 JVTA Assessment imposed, $300 restitution imposed. $100 Special Penalty Assessment imposed on Count 1 and $25 Special Assessment imposed on Count 2.
Plaintiff's Experts:
Defendant's Experts:
Comments:
