Possession of Child Pornography—2nd Circuit Rejects U.S. Supreme Court Bright-Line Rule

Among the 6 of 11 U.S. Courts of Appeal that have now applied the U.S. Supreme Court ruling in Ashcroft v. Free Speech Coalition to matters on criminal appeal, all have rejected arguments that the holding should be read as a bright‑line rule requiring expert testimony for allegedly pornographic images of children.^[1]

This past December, the 2nd Circuit Court of Appeals considered the question in U.S. v. Irving.^[2] The defendant was charged with receipt and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and (a)(5)(B). ^[3] The items in question were 76 .mpg video files found on Mr. Irving’s home computer during a search of his home in 2003. At trial, Mr. Irving was convicted on all counts and subsequently appealed.^[4]

Through his federal appeal attorney, Mr. Irving argued that his conviction on the counts of receipt and possession of child pornography should be overturned because the government failed to offer expert testimony proving that the images in the videos were actual and not “virtual” children. In Ashcroft, the Supreme Court held that because the statutory language used in 18 U.S.C. § 2252 was overbroad, it reached into Constitutionally protected areas of free speech.^[5] As such, the government was held to assume a greater burden of proof that the material was pornographic and not, therefore, protected.

In Irving, however, the Second Circuit has aligned itself with recent holdings in the 1st, 5th, 6th, 8th and 10th Circuit Courts in declining to interpret the Supreme Court’s holding as a bright‑line rule with regard to alleged works of child pornography.^[6] Instead, the Court held that juries are adequately prepared to distinguish between real and virtual children on videotape and that the government burden need not be increased.

Significantly, the Court did limit its assessment to video images of the same type in question only, namely .mpg files. In writing for the majority, Judge Cardamone also alluded to the effect of advancements in video technology in the future on jury discernment.^[7]

Receipt of Child Pornography
Under 18 U.S.C. § 2252A(a)(2)(B), it is a crime for any person to knowingly receive or distribute any material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.

Possession of Child Pornography
Under 18 U.S.C. § 2252A(a)(5)(B), it is a crime for any person to knowingly possess any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in 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 interstate or foreign commerce by any means, including by computer.

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[1] Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
[2] Id.
[3] U.S. v. Irving, Docket No. 04-0971-cr (2d Cir. 2005).
[4] This post only discusses the portion of the decision that applied the Ashcroft decision. For a discussion of the issue of uncorroborated testimony from the defendant’s personal journals, see the Second Circuit Blog.
[5] Ashcroft supra note 1 at 254-256.
[6] See United States v. Hilton, 386 F.3d 13 (1st Cir. 2004); United States v. Slanina, 359 F.3d 356 (5th Cir. 2004) (per curiam); United States v. Farrelly, 389 F.3d 649 (6th Cir. 2004); United States v. Deaton, 328 F.3d 454 (8th Cir. 2003) (per curiam); and United States v. Kimler, 335 F.3d 1132 (10th Cir. 2003).
[7] Irving, supra note 2 at 22 (“Moreover, it does not appear that video technology is so far advanced that a jury is incapable of determining whether a real child was used to make a video.”)