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June 2, 2008

Significant Third Circuit ruling in federal child porn case

Through a long opinion in US v. Miller, No. 06-5187 (3d Cir. June 2, 2008) (available here), the Third Circuit reaches some significant conclusions in a federal child porn prosecution.  Here is how the opinion starts:

Pursuant to a jury trial in the District Court for the Middle District of Pennsylvania, Donald R. Miller was found guilty of (1) receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2), (2) possessing the same images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and (3) marijuana possession, in violation of 21 U.S.C. § 844(a).  Miller was sentenced to concurrent terms of 46 months’ imprisonment on the two child pornography counts and a concurrent term of 12 months’ imprisonment on the marijuana count.  In calculating the applicable sentencing range under the Sentencing Guidelines, the District Court found that Miller, in the course of his testimony at trial, had committed perjury, and accordingly applied a two-level sentencing enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1 (2003).  On appeal, Miller argues (1) that there was not sufficient evidence to support his conviction for receiving child pornography, (2) the Constitution’s double jeopardy clause barred entry of separate convictions for receiving and possessing the same images of child pornography, and (3) the record does not support the District Court’s finding that Miller committed perjury.

We conclude that Miller’s conviction for receiving child pornography was supported by substantial evidence.  However, we further hold that (a) the double jeopardy clause barred convictions for both receiving and possessing the same images of child pornography, and (b) the entry of guilty verdicts on both of these counts was plain error.  We also hold that Miller’s testimony regarding his collection of adult pornography was neither willfully false nor material, as those terms are to be understood in the context of perjury, and thus did not support a sentencing enhancement.  Accordingly, we will vacate the District Court’s judgment and remand this case for re-sentencing consistent with this opinion.

June 2, 2008 at 11:59 PM | Permalink


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Tracked on Jun 4, 2008 10:30:10 PM


I know just enough about computers to ask questions without providing the answers, but this case seems like creative prosecution and the defense has to be equally creative. There is a hint the Third may have overturned on sufficiency of evidence grounds if it had a little more. ("Therefore, mindful that we may not “weigh evidence or determine the credibility of witnesses in making [our] determination,” Gambone, 314 F.3d at 170, we will uphold the jury’s verdict that Miller knowingly received child pornography.")

The first thing that stands out is that Miller did not upload child porn to a site (Prime Media) though that suspicion was enough for the initial warrant.

"One of the zip disks contained 1200-1400 images,
according to the government’s expert witness (the defendant’s
expert counted 1373 image files). The majority of the images
depicted adult pornography, but, the government contended,
twenty of the images depicted child pornography. The twenty
images characterized by the government as child pornography
were not among the ones that had been uploaded onto the
website hosted by Prime Media."

And then the Third seems to be asking the defense attorney why he/she didn't follow through on this question:

When asked whether he checked the “dates
accessed” for the other 1200-1400 image files on the disk, Price
replied: “No. I mean, I have that recorded, but I didn’t
necessarily note it.”

What? "Didn't necessarily note it?" Translation: that's your job, defense attorney, and it is not necessary for me to do your job. The entire case rests on knowingly possessing the images, and the only evidence is the dates. If a backup program or a viewer accessed the other 1200-1400 images at the same time as the illegal images, that would indicate an image viewer (opening an entire folder as thumbnails, for example) virus program checking for viruses or a backup program accessed the images without the owners knowledge.

Nor is there any mention of Trojan Horses though the prosecution expert implies it would be nearly impossible for someone to access the Internet from the same IP though a Trojan infection. That isn't that unusual and he had proof of prior infection of his computer. It would be interesting to know how a consensus of computer experts would rule on this case. Seems to me like it is very possible, based on this limited recital of the evidence, he really didn't know he had child porn. Either way, this isn't the kind of guy who deserves a mandatory five years. That is a long, long time.

The Third did the best it could.

Posted by: George | Jun 3, 2008 11:37:39 PM

My son has been charged with child pornagraphy, he typed in the word "nude" and downloaded 119 files. In those files the DA claims that there were 2 images that were minors, the pictures were in a recycle bin. My son is an innocent man who would never have tried to download child pornagraphy. My question is how can he be held responsible for this? Why isnt the site that sent these pictures responsible? He went to the site "My Space" Any suggestions or ways to help him would be greatly appreciated. Thank you

Posted by: tamula mercer | Jul 8, 2008 7:44:36 AM

Hello, I posted that comment on June 3, 2008. My son was sentenced on July 8, 2008 to 1 year in county jail, and 10 years probation, with the stipulation that if even got a speeding ticket in those 10 years, it was an automatic 25 years in prison. My son committed suicide at the jail on July 10, 2008. My son died because of these allegations, because of 2 pictures that he did not know were on his computer. The judges last words to him were "I am going to give you a rope and let you hang yourself" My son died by hanging the next day. He is missed so much by myself, and his 9 year old son every day. I bet everyone in the world has something on their computers, that they do not know are there, should we all be treated this way. My son was a good man, but a D.A. decided to make him an "example", now he is gone forever. My life in now filled with sorrow, and pain, that will never go away. He was my only child. Please do something about these laws. There are so many bad people in the world that are into child porn, and yes, they deserve their punishment, but my son was not one of them. He was so afraid of going to prison, of being raped and beaten, that he took his own life. How many others will die because of this porn that finds its way into our computers? I typed in the words " counseling for grieving" and it took me right to a porn site. I get filthy emails everyday from porn sites, that I do not ask for. The porn industry has taken over computers, and, somehow, must be stopped. My son is now in heaven where no one can ever hurt him again, but there is a beautiful 9 year old boy that no longer has a father, that will grieve forever.

Posted by: Tamula | Oct 28, 2009 10:52:09 AM

everyone seems to be talking about a one world order , yet the world as a whole can seem to do nothing about stopping pornagraphy of children , OH I SEE SO THE PICTURES ARE LEGAL ON LINE IN THE COUNTRY THAT THEY ARE UPLOADED ON BUT ILLEGAL EVERYWHERE ELSE It seems to me that with all the talk about joint efforts in catching terorists why not treat people who do this to children as terrorists and jail them

Posted by: Joseph | Jan 12, 2010 4:00:05 PM

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