Kansas City Federal and State Child Pornography Defense Attorney
Possession • Production • Distribution • Transmission Of Child Pornography
Both state and federal laws prohibit the possession of any photograph, video or visual depiction of any nudity or sexual activity of any person under 18 years of age. By law, persons under 18 are legally incapable of consenting to nude photography or video recording. Although the law in Kansas deems an individual capable of voluntarily consenting to sexual intercourse at age 16 – 17 in Missouri, persons under the age of 18 legally incapable of consenting to visual depiction of those otherwise “lawful” acts. Therefore, any nude or sexually explicit visual depiction of a child under the age of 18 may likely satisfy the definition of Child Pornography at the State or Federal level.
Federal and State Child Pornography Defense
If you are under investigation or facing charges of possessing or distributing child pornography in the Federal or State Courts of Kansas City, including the District of Kansas and the Western District of Missouri, contact me, Paul D. Cramm, at (913) 322-3265 to schedule an initial consultation to discuss every facet of your case and all available defenses. Between lengthy presumptive prison sentences, mandatory registration on the National Sex Offender Registry, and the social stigma that even an unfounded accusation can have, there is simply too much at stake to face these charges without the advice of skilled and experienced criminal defense counsel.
Federal Charges and Penalties for Child Pornography Offenses
18 U.S.C 2252 prohibits the possession, receipt and delivery of images and video clips depicting child pornography. If convicted, a person’s sentence is determined by application of the United States Sentencing Guidelines, U.S.S.G. section 2G2.2. Numerous factors including but not limited to: the total number of images and files; the age of the persons depicted, including enhanced penalties for depictions of ‘pre-pubescent’ minors; the activities depicted – are the minors simply posing nude, or are they engaged in sexually explicit activities; whether the images were distributed to others for pecuniary gain, will determine the sentence.
If convicted of receiving or distributing Child Pornography Images, the statutory mandatory minimum sentence a defendant must serve is 60 months – even if the defendant’s calculated sentencing range pursuant to 2G2.2 is less than 60 months. And most sentence calculations are significantly higher. However, if a Defendant is convicted of simple possession of Child Pornography images – as opposed to delivery or receipt of said images – the statutory mandatory minimum sentence of 60 months no longer applies, and the Court has the authority to enter a ‘variant’ sentence below the calculated guideline range.
Exhaustive fact investigation – including independent forensic examination of the computers and storage devices seized during the investigation – along with thorough personal personal history development including clinical sexual evaluation and assessment can be the difference between a lengthy mandatory minimum prison and a variant sentence to community based supervision and treatment.
State Penalties for Child Pornography
While at one time, there was significant disparity between the potential sentences for Child Pornography prosecutions at the State and Federal levels, that is no longer the case. Both the Kansas and Missouri Legislatures have significantly increased penalties for charges related to possession, distribution or receipt of Child Pornography images in the State Courts of Kansas and Missouri.
Sexual Exploitation of a Child – K.S.A. 21-5510
At the state level in Kansas, including the District Court of Johnson County in Olathe, crimes involving child pornography are prosecuted under the more general charge of Sexual Exploitation of a Minor pursuant to K.S.A. 21-5510. Offenses involving mere possession of child pornography are severity level 5 felony offenses with a broad guidelines sentence range of 31 to 136 months in custody, depending on your criminal history. However, Kansas recently amended K.S.A. 21-5510 to provide more serious penalties for those who promote or entice minors to create these images. Promotion and Enticement offenses are Severity Level 3 Felonies with a sentencing range of 55 – 247 months in prison depending on your criminal history score. (See my Kansas Sentencing Guidelines page for a more thorough explanation of how sentences at the State level are calculated) For defendants with no criminal record, there is at least a ‘possibility’ of probation at the state level.
Missouri Revised Statute 573.037
In Missouri, RSMo 573.037 makes possession of a single image of Child Pornography a Class D Felony. If a Defendant possesses more than 20 still images – one or more video clips depicting Child Pornography, the offense is a Class B Felony. Pursuant to RSMo 558.011, a Class D Felony is subject to punishment of a term of prison not to exceed 7 years, while punishment for a Class B Felony is not less than 5 year and not more than 15 years.
Consideration of the applicable statutes at the State and Federal level demonstrate why it is so important to retain counsel to engage in meaningful negotiations with both the U.S. Attorney and the State District Attorney before a charging decision is made. A simple agreement to prosecute the case at the State level as opposed to the Federal level may be the difference between probation and a lengthy prison sentence in your case. A seasoned defense lawyer might be able to negotiate with the U.S. Attorney to consider relinquishing the case to the district attorney’s office for prosecution at the state level, provided the U.S. Attorney is still at the “investigatory” phase of the case and has not yet secured a formal indictment against you.
Contact Experienced Federal And State Child Pornography Lawyer To Fight For Your Rights
Whether investigated or prosecuted at the state or federal Level, there are many issues an experienced child pornography defense attorney should investigate thoroughly on your behalf:
- Do the images actually depict individuals under the age of 18? Many times, this issue is presumed or taken for granted by unwary or inexperienced defense lawyers.
- Are the images real, simulated or “Photoshopped?”
- Is there valid and admissible forensic evidence of the alleged images on your computer?
- Are there 4th Amendment Search and Seizure or Suppression of Evidence Issues in your case?
- Are there any issues with chain of custody or preservation of original evidence in your case?
- Can the government prove that you personally used the computer to seek out and download the alleged images, or has your computer been available to others?
- Were the images downloaded from a “Wi-Fi” location or an unsecured wireless connection at your residence or place of business?
- “Art or Pornography?” Many jurisdictions have considered the works of Sally Mann, David Hamilton and Jock Sturges to be “art.” How similar are the images at issue in your case to those deemed to be “art”?
Effective Defense Often Requires Independent Forensic Examination
I have had the privilege of working extensively with Envista Digital Forensics on my most serious Child Pornography cases. The expertise and thoroughness that the examiners at Guardian invest in every case is literally invaluable when the stakes are high. Handling a serious internet or computer contraband case without a forensic computer expert is no different than handling a homicide case without an independent forensic Medical Examiner. Yet inexperienced – and inexpensive – attorneys make this mistake again and again. The examiners at Envista Digital Forensics appear regularly at the Heart of America Regional Computer Forensics Laboratory in Kansas City to conduct independent examinations of computer evidence in criminal cases. Envista Digital Forensics examiners have extensive experience with HARCFL protocols and requirements. If there is a problem with the evidence in your case – from collection, to chain of custody, to preservation – the examiners at Envista Digital Forensics will find it.
Effective Negotiation Often Requires Clinical Mitigation
In many cases, law enforcement has secured a valid and unassailable search warrant, authorizing seizure of the computers, smart phones, and storage devices in a client’s case. The examiners at HARCFL are experienced and are trained to avoid chain of custody and integrity errors when examining digital evidence. In many cases, it can appear that there are no legal or procedural defenses. These are the cases that require the most work building a compelling mitigating personal background for the client. This Clinical Adult Sex Offender Evaluation is the cornerstone of client mitigation in Child Pornography cases. I only work with the most experienced and respected Sexual Disorder clinicians in the Kansas City Metro area – clinicians who are members of the Association for the Treatment and Prevention of Sexual Abuse (ATSA). Often times, patterns of online pornography use are not diagnostic of pedophilia. Many of my clients discover unlawful materials wholly by accident while viewing lawful and constitutionally protected adult materials. The ‘shock value’ that Child Pornography provides can prompt further – and sometimes compulsive – search for and collection of said materials with no sexual stimulation or diagnostic attraction to minors. An experienced clinician relying on the results of well-established and industry accepted actuarial testing will be able to render a reliable opinion as to your level of risk and amenability to community based treatment.
“The Importance of Aggressive Sex Related Criminal Defense”.
I defend clients facing serious felony charges in the Federal Courts of Kansas City, including the District of Kansas and the Western District of Missouri. I also defend clients charged with serious felony criminal offenses throughout the Greater Kansas City Metro Area and the municipalities of Johnson County, Kansas: De Soto, Gardner, Leawood, Lenexa, Merriam, Mission, Olathe, Overland Park, Prairie Village and Shawnee. Call today for an initial consultation: (913) 322-3265.
For further information related to Child Pornography cases, please visit the following pages:
- How Does Someone Know That They’re Being Investigated for a Child Pornography Case?
- How Can An Attorney Help You With Your Child Pornography Case?
- Polygraph Tests: Polygraph Examinations Are Inadmissible In Court
- How Long Does It Take To Resolve A Child Pornography Case?
- What Should You Look For When Retaining An Attorney For Child Pornography Cases?
- Client Family Involvement
- Preventing Accidental Possession
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