May 6, 2014

Supreme Court Limits Restitution Payments to Victims of Child Pornography

The Supreme Court on Wednesday rejected a plea to make it easier for victims of child pornography to collect money from people who view their images online, throwing out a nearly $3.4 million judgment in favor of a woman whose childhood rape has been widely seen on the Internet.

The case involved a woman known in court papers by the pseudonym "Amy." Her losses for psychological care, lost income and attorneys' fees have been pegged at nearly $3.4 million, based on the ongoing Internet trade and viewing of images of her being raped by her uncle when she was 8 and 9 years old.

The ruling steered a middle ground between the woman's call for full restitution and the defendant’s claim that there was no relationship between his conduct and the woman's losses, so that there should be no award of restitution. The case turned on the interpretation of the federal law granting restitution to victims of sex crimes, including child pornography.

Advocates for child pornography victims argued that holding defendants liable for the entire amount of losses better reflects the ongoing harm that victims suffer each time someone views the images online. The threat of a large financial judgment, coupled with a prison term, also might deter some people from looking at the images in the first place, the advocates said.

Still, Justice Kennedy said, “the victim should someday collect restitution for all her child pornography losses, but it makes sense to spread payment among a larger number of offenders in amounts more closely in proportion to their respective causal roles and their own circumstances.”

Continue reading "Supreme Court Limits Restitution Payments to Victims of Child Pornography" »

February 11, 2014

US Supreme Court Struggles with Child Pornography Restitution

Justices at the US Supreme Court on Wednesday grappled with the difficult question of whether a person convicted of downloading and possessing two computer images of child pornography can be forced to pay $3.4 million in restitution to the child-victim depicted in the two illicit images.

The justices are examining how judges are to award restitution payments to victims identified in confiscated images of child pornography. The restitution statute passed by Congress requires judges to order defendants to pay the full amount of the victim’s losses without regard to the proportion of harm they caused.

The case involves a Texas man, Doyle Randall Paroline, who pleaded guilty to possession of child pornography and was later presented with a restitution demand from a single child-victim for $3.4 million. Mr. Paroline was sentenced to two years in prison and 10 years of supervised release. Investigators examined Mr. Paroline’s computer and found 300 images of children engaged in various sexual acts. Two of the 300 photos involved a young girl referred to in court documents by the pseudonym “Amy.” Based on the two photos, Amy’s lawyer submitted a demand for full restitution of $3.4 million.

At issue is whether a person who is convicted of possessing child pornography (rather than producing it or distributing it) can be held responsible for the total amount of restitution sought by the child-victim identified in the illicit images even though the person did not cause all, or even most, of the victim’s injuries. That interpretation of the statute would ensure that child-victims receive restitution payments quickly and efficiently. But forcing someone to pay the full amount for a crime primarily committed by someone else raises basic issues of due process and fairness. The Justices are grappling with the notion that statute is designed for restitution and not fines. A final decision by the Court is expected by June.

Continue reading "US Supreme Court Struggles with Child Pornography Restitution " »

December 24, 2013

Pennsylvania seeks to Increase Penalties for Child Pornography Crimes

The Pennsylvania State Senate recently approved a bill to increase the degree of child pornography crimes. The bill was approved in response to the Jerry Sandusky and Catholic clergy molestation scandals that have occurred in Pennsylvania.

Under the new bill; producing, disseminating or viewing child pornography would be considered more serious crimes if the material depicts indecent contact with a child. This would make the production of child pornography as high as a first-degree felony on a second and any subsequent offense. Other related bills pending in the Legislature would increase the punishment for people found guilty of covering up child abuse and expand the list of people required to report a suspicion of child abuse.

Continue reading "Pennsylvania seeks to Increase Penalties for Child Pornography Crimes" »

March 31, 2011

Ninth Circuit: Deleted Computer File Not Enough For Child Porn Conviction

In the recently decided case, U.S. v. Flyer, No. 08-10580 (2-8-11), the Ninth Circuit Court of Appeals determined that deletion of an image alone is insufficient evidence to support a conviction for knowing possession of child pornography on or about a certain date under US federal law.

In an undercover operation, the FBI had downloaded various files containing child porn through a file-sharing program, which were traced back to the defendant’s IP address. A search of the defendant’s residence produced a computer, on which child pornography was found in the “unallocated space” on the defendant’s hard-drive. Files found in unallocated space are files which have been deleted, but which can be viewed or accessed with special software. Based upon the government’s finding of child pornography files in the “unallocated” space on the defendant’s hard-drive, he was charged with possession of child pornography and convicted at trial.

On appeal, the defendant argued that evidence presented at trial was insufficient to support his conviction. The Ninth Circuit agreed, reversing his conviction. The court explained that the government had presented no evidence that the defendant knew that the files existed on the unallocated space of his computer’s hard-drive, or that he had the special software required to see or access the files. The Court also noted that there was no evidence that the defendant had “accessed, enlarged, or manipulated any of the charged images”, and that “he made no admission that he had viewed the charged images on or near the time alleged in the indictment.” Thus, because the only evidence supporting the defendant’s conviction was the deletion of an image (leaving it in the “unallocated space”), the Court determined that the evidence failed to support a conviction for possession of child pornography.

Continue reading "Ninth Circuit: Deleted Computer File Not Enough For Child Porn Conviction " »

March 28, 2011

Third Circuit Upholds Warrant in Child Pornography Case

The Third Circuit Court of Appeals recently found that a search warrant in a child pornography case was sufficient, even if not based on a detailed description of the computer hard drive being searched. In US v. Miknevich, 2011 US App. LEXIS 3824 (3d Cir. March 1, 2011), the Court considered whether the affidavit providing the basis for a search warrant in a child pornography case need to include copies of the items being searched for or a detailed description of these items.

Defendant Stephen Miknevich was charged with possession of child pornography in the United States District Court for the Middle District of Pennsylvania. At trial, he moved to exclude from evidence the images of child pornography found by police on his home computer by challenging the validity of the search warrant used by the police. The District Judge denied his motion, and Miknevich pled guilty, understanding that he could still challenge the legitimacy of the warrant before the Third Circuit Court of Appeals.

When reviewing the validity of a search warrant, an appellate court (such as the Third Circuit Court of Appeals) must determine whether the judge issuing the warrant had “probable cause” to believe that the defendant was guilty of a crime. A judge issuing a warrant may find “probable cause” when, viewing the totality of the circumstances, “there is fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). If a substantial basis exists to support the judge’s finding of probable cause, the appellate court must uphold the finding even if a different judge “might have found the affidavit insufficient to support a warrant.” US v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993).

Here, Miknevich argued that the warrant was invalid because the police affidavit that the issuing judge relied on did not include either a copy of the movie that the police expected to find on his computer, or a description of the movie’s content. Still, the Third Circuit found that the warrant was adequate, because it did contain the file name for the movie, which referred to explicit sexual acts being conducted by six and seven year old children. Although the Court recognized that file names do not always accurately describe file contents, they also noted that for a warrant, a judge need not be certain that the defendant was guilty of a crime, only that there was a substantial chance that he was. Based upon this standard, the Court held that the file name was enough, and that the warrant was valid.

Continue reading "Third Circuit Upholds Warrant in Child Pornography Case" »

March 16, 2010

Child Pornography Victim Seeks Restitution From Those Convicted of Possessing her Images

When Amy was a young girl, her Uncle sexually abused her by forcing her to pose for sexually explicit photographs and sharing those photographs with other pedophiles. Her photographs, which became known as “the Misty Series”, were some of the first photographs to ever surface in the internet world of child pornography and remain popular amongst child pornography viewers even today. Amy has since reached majority and with the help of a creative lawyer, is now seeking restitution from all those convicted of possessing her photographs.

The Uncle who was responsible for violating Amy as a child currently remains in prison, yet in the world of child pornography, Amy’s pictures continue to circulate. Every time someone is arrested for possession of child pornography containing one or more of her photographs, Amy receives notification from the Federal Government. Amy’s lawyer has begun filing lawsuits against those individuals based on child exploitation. He had Amy examined by a psychiatrist and also had her write a victim impact statement. He then hired an economist to examine the psychiatrist’s findings, estimate counseling, diminished wages and lawyer’s fees, and determine the total monetary damages faced by Amy due to her sexual abuse. This number was determined to be $3,367,854.00.

The idea of restitution gives the Court another means by which to punish child pornography offenders. Prison sentences for offenders have consistently been extended and conditions of parole have become more and more restrictive, to the point where equal protection under the Constitution has become an issue raised in defense of violators. By holding offenders financially liable for their actions, Courts have an alternative to increasing prison sentences, which may then be challenged as unconstitutional.

Since Amy has begun seeking restitution from those possessing her pornographic photographs, Amy has collected $170,000.00; $130,000.00 contributed by an executive from a pharmaceutical company convicted of possession of child pornography. Amy is suing under a theory of joint and several liability; seeking contribution from all those convicted of possessing her photographs until she receives the total of $3,367,854.00.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately. You may schedule a confidential consultation by calling (215) 563-9800 or by email, marc@nefflawoffices.com.

May 5, 2009

Third Circuit Holds Government Contracted Psychologist May Be Subpoenaed To Testify Favorably For Defendant at Sentencing

The Third Circuit Court of Appeals recently decided the case of United States v. Olhovsky, ruling that the sentence imposed by the District Court upon the Defendant was unreasonable. Nicolau Olhovsky was sentenced to six years imprisonment after pleading guilty to charges of possessing child pornography. In 2004, an undercover law enforcement officer was investigating an Internet Relay Chat channel (“IRC”) in which users would trade pornographic images of children. Olhovsky was identified as one of the IRC’s users. In December of 2004, and shortly after Olhovsky’s eighteenth birthday, officers obtained a search warrant for Olhovsky’s home which he shared with his mother and sister. The subsequent search resulted in discovery of a hard drive containing over six hundred images of child pornography. Olhovsky admitted to owning the hard drive and participating in the online trading of child pornographic images.

Nicolau Olhovsky was born with several birth defects, including problems with his heart and a concave chest. His parents divorced when he was seven; he and his sister lived with their mother who became permanently disabled in a car accident shortly after the divorce. Olhovsky was awkward and isolated as a child; bullied and teased at school because of his physical deficiencies. He had a history of depression, suicidal tendencies, and was admitted into a psychiatric facility for treatment. As a result of his many physical and social problems, Olhovsky spent much of his adolescence alone in his room with his computer.

Following his guilty plea to child pornography charges, the Court ordered a psychological evaluation prior to sentencing. In his meetings with the court-appointed psychologist, Olhovsky discussed his adolescence, his current mental state, and explained as to how he became involved with child pornography; he had received an email which he opened, and this email sparked his curiosity. Dr. Silverman, who was contracted with Pretrial Services, wrote a letter to the trial judge expressing his opinion on Olhovsky and emphasizing he had never written a similar letter for any other Defendant. In his letter, Silverman alluded to Olhovsky’s past and that Olhovsky had the maturity level of a fourteen or fifteen year old. He explained that Olhovsky was extremely remorseful for his crimes and that he was slowly progressing towards becoming a mature adult; he is currently in a relationship with an adult female, he has been more active socially, etc. Most importantly, Dr. Silverman opined that Olhovsky’s collection of child pornography was due to his immaturity and curiosity, and that he was a low risk for becoming a pedophile or repeat offender.

Upon examination of this letter, defense counsel attempted to subpoena Dr. Silverman to testify at the sentencing of Olhovsky. The prosecution objected to the subpoena being granted, and the trial court refused to grant the subpoena, holding that Dr. Silverman would be testifying as an expert and such testimony was cumulative in expert reports available to the Court. The Court stated that Dr. Silverman was free to testify voluntarily and could submit additional reports for review; the defense alleges that Pretrial Services threatened to revoke Dr. Silverman’s vendor contract had he volunteered to testify, causing him not only to choose not to, but also to cease communication with the defense. Upon sentencing, the Court examined the mitigating evidence which was available and chose to impose a six year sentence; less than the suggested guidelines but sufficiently lengthy to satisfy the Court’s determination that a “substantial, indeed, draconian” punishment was required.

On appeal, the Third Circuit held that not only did the trial court err in not granting the subpoena for Dr. Silverman to testify as an expert, but that his testimony would actually be factual. Dr. Silverman could have testified to mitigating circumstances which were not contained in his letter to the Court. Further, the Appellate Court held the District Court failed to fully consider the expert reports submitted by the defense as mitigating evidence, imposing sentence to punish the Defendant rather than rehabilitate him. Olhovsky’s sentence was subsequently vacated and the case was remanded for resentencing.

Child Pornography
Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

February 19, 2009

Underage "Sexting" Now Punishable as a Sex Crime in a Growing Number of Jurisdictions

As cellular telephone technology advances at an extremely rapid pace, more and more teenagers are possessing phones with the capabilities to snap still photos or record short videos. Coupled with the fact that as a society, children are becoming acquainted with sex at younger ages, this technology has led to the practice of sexting; sending nude photos or other sexually explicit photos and/or videos to a recipient via cell phone. The practice of sexting has led to numerous ethical and moral arguments, but the practice amongst teens has caught the attention of law enforcement. In many jurisdictions, these sexually explicit images and videos, sent amongst teenagers, are violations of child pornography laws.

An online survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy showed that one-in-five teenage participants have sent and/or received sexually explicit material via cell phone. Nearly two-thirds of those who admitted to sexting only did so within a boyfriend/girlfriend relationship; however teens in the other one-third admitted to sexting for the purpose of “hooking-up”. It is this culture of a casual sexual relationship which causes worry amongst advocacy groups who blame society’s attitude for the first rise in teenage pregnancy rates in the past fifteen years.

A Delaware middle-school recently dealt with an incident where cell phones were confiscated during class because they were forbidden in the classroom, only to find sexually explicit material upon inspection of the phone’s content. The school determined the images were not sent at or during school and decided to notify the students’ parents to deal with the problem. Other teens have not been as lucky. Another student in Delaware faces obscenity charges for sending nude photos of himself to classmates. In Pennsylvania, seven students were charged with sending or receiving child pornography when their phones were discovered to contain explicit images sent between the students. Convictions for these offenses not only will carry potential confinement, fines, and psychological evaluations, but may also require those convicted to be registered as sex offenders.

Many oppose prosecution in these cases for the simple reason that the participants do not have a criminal intent, but rather are merely conforming to society as they see it. There are no penalties for the same consensual actions amongst those of age. Many agree that the responsibility stems with the parents to talk to their children. Children should understand that once an image is sent, they no longer have any control over it; and with today’s technology, such material can easily end-up on the internet. Teens should understand that cellular phone technology does not come with a guarantee of privacy.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

August 1, 2008

New Jersey Lawmaker Resigns amid Child Pornography Investigation

New Jersey Assemblyman Neil Cohen resigned from his position on Monday, following allegations of suspected child pornography found on his computer. Colleagues of Cohen’s, who use the same legislative district office, alerted law enforcement officials last week of the alleged images found on Cohen’s computer. According to State Assemblyman Joseph Cryan, the investigation of Cohen began when a staffer in the Union office found a printed-out photo of a nude female, suspected to be in her early teens or younger.

The case has been referred to the State Attorney General’s office for investigation; Cohen has yet to be charged with a criminal offense. Cohen, a divorce lawyer, has served in the assembly for nearly 20-years. Cohen, who is regarded highly by his peers, will now have his legacy overshadowed by these allegations according to colleagues and other State officials. New Jersey Governor Jon Corzine released a statement expressing his shock and disturbance by the allegations. “Child pornography reflects a horrible debasement of children that is totally intolerable. Creating, distributing and using child pornography should be pursued vigorously by law enforcement wherever it is found." said Corzine. Cohen remains in psychiatric care, and pending further investigation, will likely face criminal charges.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.


July 30, 2008

United States Court of Appeals Upholds Ruling that Child Online Protection Act is Unconstitutional

On July 22, 2008, the 3rd Circuit U.S. Court of Appeals affirmed the district court’s ruling in ACLU v. MuKasey, striking-down the Child Online Protection Act (COPA) which was passed in 1998; finding that the act is unconstitutional. The case, decided in Philadelphia, Pennsylvania, will now likely be appealed to the United States Supreme Court.

COPA, which was passed nearly a decade ago, has been the topic of constant legal battles; an almost immediate injunction following the Act’s passage has not allowed the law to ever take effect. The Child Online Protection Act was passed three years after the United States Supreme Court ruled a similar act unconstitutional.

In the decision, Judge Greenberg writes that in order to survive the “strict-scrutiny” test of constitutionality, the law in question must be of a compelling governmental interest and narrowly tailored to its purpose. The United States Supreme Court had ruled previously that “there is a compelling interest in protecting the physical and psychological well-being of minors”. The Court of Appeals scrutinized COPA under the standard of whether it was narrowly tailored to achieve its purpose.

The Act was written to include “‘material that is harmful to minors’ ” which includes the concept of ‘taking as a whole’ material designed to appeal to the ‘prurient interest’ of minors; and materials which lack ‘serious literary’ or other value to minors.” The Court agreed with the lower court’s determination that such language was overly broad and vague, and could endanger a wide range of communications, exhibits, and speakers. Further, the Court agreed with the lower court’s assertions that programs and filters were a less restrictive, yet successful, way to prevent minors from accessing such content.

The Law Offices of Marc Neff has extensive experience in matters involving child pornography. Mr. Neff has handled numerous cases of this nature. The office employs a team approach using only the must qualified forensic experts. For a confidential consultation, contact Mr. Neff at (215) 563-9800 or via email Marc@nefflawoffices.com.