State and Federal Child Pornography Charges

Originally published by Benson Varghese.

For over a decade Jared Fogle was the face of Subway restaurants. That all changed yesterday when Fogle’s house was raided by FBI and Indiana State Police in relation to a child pornography investigation. Although Fogle has not been charged with an offense or arrested, Subway has already removed every mention of him from their website.

Here is what we know about the investigation so far: The search was related to the investigation of Russell Taylor, who is in jail facing child pornography charges. Taylor was the Executive Director of Fogle’s non-profit the “Jared Foundation.” Court documents allege that police discovered 400 videos of child pornography at Taylor’s residence. Two of the recovered thumbdrives had files relating to the Jared Foundation. It is unclear what these files were or how they are related to the child pornography investigation.

Federal Child Pornography Laws

18 USC 2252 makes the receipt, distribution and possession of child pornography a federal offense. 18 USC 2251 makes it a federal offense to produce child pornography. Enticing a child to engage in prostitution or engage in sexual activity is an offense under 18 U.S.C. 2422. For purposes of most federal offenses, a child or “minor” is a person under the age of 18.

Federal Child Pornography Sentencing Ranges

The Federal Sentencing Guidelines, although they are only advisory and not mandatory, set out heavy sentences for individuals who are found guilty of a child pornography related offense. Possession of child pornography is punishable by 10-20 years for a first-time offender. 18 USC 2252(b)2. Receipt or distribution of child pornography carries with it a punishment range of 5-20 years for first-time offenders. A first-time offender under 18 USC 2251 for production of child pornography will face a punishment range of 15-35 years. Enticing a child to engage in prostitution or engage in sexual activity carries a punishment range of 10 years to life. Pursuant to 18 U.S.C. 2251, any federal offense that involves the production of child pornography has a basic punishment range of 15 to 30 years in prison. Furthermore, pursuant to 18 USC 3559(e), a person who has been previously convicted of production of child pornography may face a mandatory life sentence.

Federal Child Pornography Sentencing Considerations

As a result of the high guideline sentencing ranges for these offenses, defense attorneys often ask the sentencing court to consider 18 U.S.C. 3553(a) factors in hopes of obtaining a non-guideline sentence.

Supervised Release after a Federal Child Pornography Sentence

18 USC 3583(k) authorizes the court to impose life supervised release following release from federal prison. This means a person convicted in a federal child pornography case may have to live out the rest of their lives after release reporting to federal probation officer.

Child Pornography Charges in Texas

In Texas, pursuant to Penal Code Section 43.26, Possession of Child Pornography is a Third Degree felony, carrying punishment of 2-10 years in prison. Possession with the Intent to Promote Child Pornography (by selling, exhibiting, sharing etc) is a Second Degree Felony, which carries a punishment range of 2-20 years in prison. The affirmative defenses under Penal Code Section 43.25(f) also apply to Possession of Child Pornograpy cases in Texas:

It is an affirmative defense to a prosecution under this section that:

(1) the defendant was the spouse of the child at the time of the offense;

(2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or

(3) the defendant is not more than two years older than the child.

If there is a question before the jury as to whether or not the person depicted in the recording is 18, Section 43.25(g) provides that the determination can be made by:

Personal inspection of the child
Inspection of the photograph or motion picture that shows the child engaging in the sexual performance
Oral testimony by a witness to the sexual performance as to the age of the child based on the child’s appearance at the time
Expert medical testimony based on the appearance of the child engaging in the sexual performance
Any other method authorized by law or by the rules of evidence at common law.

If you are being charged with possession of child pornpgrphy at the state or federal level, it is important to have an attorney who understands the law, the available defenses, how out-of-state subpoenas work and who understands how electronic evidence can be tracked or challenged in court. (817) 203-2220.

 

 

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