In almost every case involving child pornography prosecutors in Massachusetts are faced with what should be a difficult decision: to charge possession of child pornography or to charge distribution of child pornography. Let’s look at some common facts. Rarely, if ever is a defendant caught with one image or a few images. This is because child pornographic materials are accessed through file share programs. The files that people receive though peer to peer networks usually contain scores if not hundreds of images. Under Massachusetts law this permits the prosecution to charge the more severe felony, distribution of child pornography. And usually, the prosecution does just that, it charges distribution. However the charge of possession, a lesser included felony is typically charged as well. This post examines why that is done and some thoughts on defending these cases.
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Possession, Distribution of Child Pornography Against Former Peabody Cop Charged Following Computer Search
Late last week Julie Manganis of the Salem News reported that Joseph Ferrante, a retired Peabody, Massachusetts police officer has been charged with Possession of Child Pornography and Distribution of Child Pornography. Both charges are felonies in Massachusetts.
In September of the year a Massachusetts State Trooper got onto a file-sharing website and obtained information that a Comcast customer was viewing child pornography. The officer subpoenaed the Comcast information and learned that the IP address was registered to Ferrante. With that a search warrant was secured and served on Ferrante’s home last Monday. Ferrante was questioned during the execution of the warrant and admitted that he had viewed the illicit material but denied storing it on his computer. A preliminary search revealed the existence of evidence of the crime on the computer. A more thorough search of the computer will be conducted over the next several months.
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Being a criminal defense lawyer I have concerns about the representations that Ferrante actually admitted to having committed these very serious crimes. As a former cop he has to know that anything he says will be used to prosecute him. He also has to know that proving these cases is extremely difficult, unless of course the suspect confesses to the crime. Computers in private residences are rarely secured. Family members, guests, friends, etc. regularly go onto a household computer. Thus, proving that the subscriber is the guilty party is difficult. A successful prosecution becomes even more difficult if the IP address is not secured. Anyone within the range of the wireless mechanism can access the Internet if it is not secured. This makes it appear that the subscriber is using the Internet when in fact it is somebody else. This happens more than you may think, particularly in restraining order violation cases where the defendant is being set up by the “victim”. Assuming Ferrante knew any of this you have to wonder why he would admit guilt to the police. Or did he?
I have defended many Child Pornography cases in Massachusetts and on only one occasion did the prosecution attempt to proceed without a confession. In all of these cases the link to the defendant that made the case provable was the defendant’s confession. Again, this shows that nothing good can come from talking to the police. You have a constitutional right to remain silent. It was given to you for a reason. Use it. If you have any doubt call a criminal lawyer. I can assure that the advice will be the same. Keep your mouth shut.
Massachusetts Man Arraigned in Newburyport on Charges of Possession of Child Pornography, Unlawfully Videotaping People in the Nude
David Anderson of Salisbury, Massachusetts has been charged with Possession of Child Pornography and Unlawfully Videotaping Persons in the nude. According to a report in the Lawrence Eagle Tribune, Anderson’s former wife found nude video pictures of unsuspecting young female relatives. The girls were between the ages of ten and thirteen. She contacted police in Newtown, Connecticut, a town where Anderson also resides. The police in Connecticut contacted the Salisbury, Massachusetts police who in turn applied for and obtained a Search Warrant. According to authorities, computer hard drives were seized and analyzed. On them are thousands of images of young women. The women came into contact with Anderson through internet advertisements offering money in exchange for internal examinations. The examinations consisted of digital intrusions that were photographed. Anderson’s activities might have occurred over the course of several years. The case in now pending in the Newburyport District Court but will likely be prosecuted in the Essex County Superior Court in Salem. Anderson has a pending Child Pornography case pending in another state.
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So how would a Massachusetts Criminal Lawyer defend a case like this one? The answer is pretty simple. Get the search declared unconstitutional and it is unlikely that the prosecution will be able to go forward with its case. How likely is that? Well, that all depends on how well the affidavit in support of the Search Warrant was written. In cases like this one the credibility of the person providing law enforcement the initial incriminating evidence is at issue. In this case that person is Anderson’s former wife. Since she is not identified as a “confidential informant” the standard for determining her credibility is somewhat relaxed. She receives an enhanced status when her credibility is being evaluated. One Massachusetts case stated that someone who witnesses a crime should be deemed reliable without needing to show prior reliability. In this case there should be a caveat to that. One can reasonably conclude that a former spouse’s credibility might be in doubt where the relationship is shown to be hostile. Thus, there would need to be independent corroboration to the allegations made by Anderson’s wife in this case.
This article suggests that Anderson might have additional problems developing in the near future. The police are trying to identify the women whose images were taken during the “examinations”. As they come forward I would expect the charges to mount along with the strength of the district attorney’s case. Defending this case is not going to be an easy task and the consequences of a conviction will likely implicate a jail sentence.
Lawrence Massachusetts Sex Offender, 70, Found in Possession of Child Pornography, Charged with Massachusetts Sex Crimes
The manager of a rooming house in Lawrence, Massachusetts found a laptop in the laundry room that she believed belonged to one of the tenants. Rather than return it the woman opened it and found images of Child Pornography. She then called the police. It was determined that the computer belonged to Gerard Anthony Burbine, a registered sex offender. Lawrence police then secured the laptop. They obtained a Search Warrant and a search of its contents confirmed the presence of Child Pornography. Burbine was previously charged with and convicted of Possession of Child Pornography for which he received a jail sentence. Right now, according to the Lawrence Eagle Tribune Burbine is being held on thirty thousand dollars bail for Enticing a Minor to be Exhibited in a State of Nudity. The case is being prosecuted in the Lawrence District Court but will probably be moved to the Essex County Superior Court in Salem, Massachusetts.
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I imagine that Burbine is being charged under Massachusetts General Laws Chapter 272 Section 29A. That statute prohibits anyone from enticing someone whom he knows or should know is under eighteen years old from enticing that person to be exhibited in a state of nudity. A conviction for that offense is a felony for which there is a ten year minimum sentence. The article here makes no mention of facts that support this charge. Thus, I can only assume that during the forensic examination of the computer there were some emails or chat line communications located that suggested some sort of enticement.
Any Experienced Massachusetts Criminal Lawyer will tell you that there are always defenses to cases like this one. It is likely that the rooming house has one IP address that the tenants share thereby making internet access easy for everyone. The fact that the laptop was found in the laundry room suggests that someone other than Burbine was using it. Think about it. Why would he need the laptop in the laundry room? And, if he was using it there why would he leave it there? People living in rooming houses have limited means and are inclined to protect their personal belongings, not leave them in open areas. Aside from the device, what links Burbine to the illicit activity? Did anyone see him perusing the unlawful material? Are there any personal identifiers showing that he was the person who accessed the Child Pornography? Perhaps there is nothing more than stated in this article thereby making a prosecution of this case more difficult that it initially appears.
Marblehead Massachusetts Man Pleads Not Guilty to Child Pornography Charges in Lynn District Court
Yesterday a Marblehead, Massachusetts man was arraigned on Child Pornography Charges in the Lynn District Court. The thirty three year old defendant was charged with Distribution of Child Pornography and Possession of Child Pornography. Authorities stated that an Essex County Internet Crimes Task Force identified the defendant in the course of one of its investigations. A Search Warrant was obtained and executed at his home. A computer was seized and searched. On it the police found about one hundred lime wire files depicting children engaged in pornographic acts. The basis of the distribution allegation centers on the use of a file sharing service. Bail was set in the amount of ten thousand dollars. The defendant’s lawyer asked that the case file be sealed pending a resolution of the case. He stated that a release of this information prior to trial would create irreparable harm regardless of the outcome of the case. The judge temporarily allowed the request citing non-compliance with the Massachusetts Uniform Impoundment laws.
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So what are the Massachusetts Uniform Impoundment Rules? In Massachusetts a party is allowed to file a motion for the impoundment of certain materials provided the motion states sufficient grounds and is supported by an affidavit. The motion must state with particularity the material the party seeks to impound. A time period for impoundment must be stated. The request for impoundment can be made prior to the filing of the objectionable material. In some instances third parties have the right to be heard in opposition to a motion to impound. Impoundment may be allowed only after a showing of “good cause”. Good cause contemplates the nature of this matter, the type of information that his being requested to be impounded, the reasons for the request and the interests of the community in general. Orders of impoundment may be modified. Appeals of these orders are brought before a single justice of the Massachusetts Supreme Judicial Court.
An Experienced Massachusetts Criminal Lawyer would want to use this rule in a case like this one. The allegations against the defendant are heinous. Anytime a search of this defendant’s name is entered these charges and the article will appear regardless of the outcome of the case. Concealing the details of this case and the data identifying the defendant to these allegations is a great strategy particularly in cases where lawyers are confident that a favorable result will follow for their client. The problem however is that the public oftentimes has access to this material prior to the case being brought forward in court. This can make the application of the impoundment rules improbable.
Hyannis Massachusetts Man, 23, Charged in Federal Court With Producing Child Pornography
According to a report in the Barnstable Hyannis Patch, Kevin McNicol of Hyannis, Massachusetts has been charged in the Massachusetts Federal Court for Sexual Exploitation of a Child. Authorities allege that McNicol had a minor engage in sexually explicit acts for the purpose of transmitting a video of that act. The crime occurred in April of 2004. McNicol’s home was searched on May of last year at which time his computer was seized. An analysis of the computer hard drive disclosed the presence of Child Pornography created through a web cam.
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The article does not disclose under which statute McNicol was charged. I would imagine however that 18 U.S.C. Section 2251 applies here. That statute makes it a crime for anyone to entice, persuade or coerce a minor to engage in explicit sexual conduct for the purpose of transmitting a live depiction of such conduct. The sentence for a conviction under this statute mandates fifteen years in federal custody and has a maximum sentence of thirty years in prison.
There is an unusual defense to this crime. Federal case law has held that if a defendant shows by clear and convincing evidence that he was not aware that the actor was under the age of eighteen he can avoid a conviction. Unlike Statutory Rape laws in Massachusetts, this statute permits someone to defend the case on the basis that he made a good faith mistake as to age. There is a caveat to this however. The First Circuit Court of Appeals has not addressed this issue and the supporting authority comes from the 8th, 9th and 11th Circuits.
The challenges to sentences under this law have not been very successful making it all the more important that anyone charged with this crime hire an experienced Massachusetts Federal Crimes Lawyer.
So how is the defendant going to fight these charges? For one thing, anytime there is a Search Warrant issued lawyers look to see if the warrant violated the Fourth and Fourteenth Amendment rights of the accused. Was there probable cause to issue the Search Warrant? Does the supporting affidavit provide sufficient evidence that the crime was committed and that the items searched would likely contain evidence of the commission of the crime? Sometimes in cases like this there is a live issue as to who actually orchestrated the criminal act. The mere presence of the illicit material does not necessarily mean that the person viewing it is responsible for the creation of the act. Nor for that matter is it always clear that child pornography on a one person’s computer means that he or she is responsible for downloading or viewing it. The age of the victim and his or her role in the act is important for reasons stated above. Differences in age between the defendant and victim can also have an effect on the sentence imposed in the case. It is important to remember that no matter how severe the accusation there is always a defense to criminal charges and the ability to mitigate any sentence that might be imposed.
Needham Massachusetts Man Charged With 5 Counts of Possession of Child Pornography After Co-Workers Find Images on Laptop
Last Thursday, Keith Millan was charged with five counts of Possession of Child Pornography in the West Roxbury District Court. According to a report on Boston.com, Millan was an employee at a local property management company. It is alleged that co-workers found Child Pornography on his laptop. Images were also found on some compact discs and an external hard drive. Millan is a resident of Needham, Massachusetts. The images were characterized as disturbing and violent. Bail was set in the amount of twenty five thousand dollars cash.
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As a Massachusetts Criminal Lawyer I am seeing Child Pornography cases in being charged at an exponential rate. Online child pornography is one of the fastest growing internet based businesses worldwide. Just over three years ago there were over one thousand five hundred child abuse domains, more than one half of which were housed in this country. The demand for this material is growing at an alarming rate. One source estimated that back in 2005 the child pornography industry was grossing three billion dollars per year. There are studies that show that about forty percent of child pornography possessors had also had unlawful sexual contact with children. It is this fact that has prompted many Massachusetts prosecutors to advocate for more stringent penalties for people charge with Possession of Child Pornography even though Distribution of Child Pornography is considered the more serious offense in this state. These laws are getting tougher each time they are reviewed. There is a recent movement by federal prosecutors to have Congress increase the sentences for people convicted of child pornography possession cases. This is being watched closely by criminal lawyers in Massachusetts and throughout the country.
There are however problems inherent in most prosecutions for Possession of Child Pornography. Cases are charged when illicit images are found on someone’s personal computer, laptop, smart phone or other device. The first and most natural tendency is to accuse the owner of the property of possessing the material. This is not always fair. Most people, even today, are relaxed about these devices. People share cell phones and computers. They leave these items out in the open for hours or days at a time not worrying about who might be using them. People receive certain emails or texts that they immediately open or download without first checking to see if they know the sender. Spammers send links to illicit websites under the guise of a friend, employer, marketer and even at times a government agency. There is an inclination to open these messages, read them and to sometimes innocently download the content. The owner of the device can at times be oblivious to the presence of these materials. If caught up in this type of situation there is a great need to hire an experienced criminal defense lawyer, one who has defending child pornography case in Massachusetts with success.
Tewksbury Massachusetts Man Charged With Child Pornography, Rape Of A Child, Other Sex Crimes After Caught In Modeling Scam
According to an article in today’s Lowell Sun, Thomas Hutchinson has been indicted by a Middlesex County Grand Jury on multiple Massachusetts Sex Crimes. The former Billerica, Massachusetts man was arrested this past July and initially charged in the Somerville District Court. It is alleged that Hutchinson pretended to work in the modeling field and that he would contact females through the internet. One girl sent him photographs and videotapes of herself in the nude. Hutchinson then threatened to post the nude images and videos live if the girl did not have sex with him. Hutchinson’s home and car were searched by police from Tewksbury and Medford. The Search revealed Child Pornography images, chats with apparently underage girls and additional evidence of sex crimes. Now Hutchinson is facing charges of Rape of a Child, Indecent Assault and Battery, Attempted Extortion, Child Enticement, Assault with the Intent to Rape and Possession of Child Pornography. The case will be prosecuted in the Superior Court in Woburn, Massachusetts.
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Child Enticement in Massachusetts is a felony. The law proscribing this behavior is Massachusetts General Laws Chapter 265 Section 26C. The law states that anyone who entices someone under the age of sixteen to enter or leave a building or vehicle with the intent to commit one of several enumerated crimes is guilty of Child Enticement. A violation of this law and a conviction for that violation subjects the defendant to five years in state prison. The word entice can mean lure, solicit, invite, persuade, coax or induce. There is an interesting aspect to this law. There is no requirement that the person enticed be a real person. Thus, there is no defense of factual impossibility. The clear intent of this law is to catch and prosecute people who victimize children and to deter this type of behavior.
Attempted Extortion in Massachusetts is a crime pursuant to Massachusetts General Laws Chapter 265 Section 25. That law makes it a crime to threaten to accuse someone of a crime or to use power or authority to extort money or a monetary advantage from someone. This crime is also a felony and is punishable by up to fifteen years in state prison.
The two crimes discussed above might just be the least of Hutchinson’s worries. The Rape of a Child and the Possession of Child Pornography cases are perhaps the most serious allegations in this case. While the Rape allegation is not detailed in the Lowell Sun article I surmise from the context of this indictment that the girl “agreed” to having sex with Hutchinson to avoid the publishing of the nude photos and videos. In a legal sense this constitutes “force”. What just might save Hutchinson from an extremely lengthy sentence would be his age. He is nineteen, not much older than the victim.
Framingham Massachusetts Man Faces Possession, Distribution Of Child Pornography Charges After Images Found On His Computer
Yesterday a man from Framingham, Massachusetts was arraigned on charges that he was in Possession of Child Pornography and for Distribution of Child Pornography. The charges stem from an investigation that started in July and that was conducted by the Massachusetts State police. The article in the Metrowest Daily News states that the investigating officer was searching the internet for these illicit images and used a program to determine the origin of download for the materials. The results suggested to the officer that the man’s computer was the source of the photos. At the arraignment hearing prosecutors offered that when confronted with the allegations the defendant denied having any computers. He further denied using peer-to-peer file sharing programs. A Search Warrant was applied for and granted. Officers raided the defendant’s home and found a laptop with a large quantity of Child Porn on it. He was released on a modest bail. Right now charges are pending in the Framingham District Court.
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I very often I have clients retaining me on Distribution of Child Pornography Cases in Massachusetts. Those who did in fact download the illicit material, either deliberately or inadvertently, are baffled when they are charged with distribution. They make clear that they never distributed the material to anyone and that a forensic examination of their computer will prove this. Well, what they do not know is that by accessing the material through file sharing programs or peer-to-peer networking they are in fact in violation of the Massachusetts and Federal Child Pornography Distribution laws. Now how can that be? File sharing as we know it today started with Napster, about ten or twelve years ago. Researchers believe that there may be as many as eighty million people in the United States who use file sharing programs in some way or another.
Peer-to-peer file sharing or P2P permits people to download files, games, music videos and more from other computers that are connected or “peers”. What happens however is that now others can access that material from your computer. For legal purpose, at least right now, that constitutes distribution in Massachusetts and in Federal Court.
So what are some defenses to cases like this one? Certainly the defendant’s intent can be argued to a jury. That a person intended to download only or simply “possess” the material is a decision that the jury can make. After all, distribution must be made knowingly. If the district attorney cannot prove that the person using a peer-to-peer program knew that his actions constituted distribution then an acquittal might be possible. Proving knowledge rests on many factors that may or may not be present in this case. What experience did he have with computers? This can be determined not only from the testimony of witnesses who are aware of his proficiency but also from an examination of his hard drive. What is actually on the hard drive? Was the defendant selling this material online? Was he engaged in chats that alerted people to the location of this material? Remember that the article states only that the state trooper conducting the investigation learned that Conley was downloading the materials. The forensic report for the hard drive in this case will answer many of these questions and to some extent guide the defense efforts.
Braintree Massachusetts Man Charged With Possession Of Child Pornography, Distribution Of Child Pornography
A sixty three year old Braintree, Massachusetts man was charged in 2009 with thirty one counts of Possession of Child Pornography and Distribution of Child Pornography according to a report in the Quincy Patriot Ledger. The man, Francis Austin’s competency became an issue resulting in a two year delay of the case. It is alleged that Austin’s involvement in these acts was first detected by authorities in California who alerted Massachusetts officials to the activity. A Search Warrant was obtained for Austin’s home. His computer was seized and on it investigators located the illicit materials. The case is being prosecuted in the Norfolk County Superior Court.
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There are times when a prospective client will “suggest” to me that he is incompetent to stand trial. They become disappointed very quickly when I explain to them the law on competency to stand trial in Massachusetts and the consequences of employing that approach. The test in Massachusetts for determining the competency of a person to stand trial is simple. The accused must have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and he must have a rational and factual understanding of the proceedings against him. Challenges to competency to stand trial are governed by statute, Massachusetts General Laws Chapter 123 Section 15. That statute essentially works like this. At any time a judge can order a defendant to be evaluated for competency to stand trial. The defendant will then be examined by a qualified psychologist. The defendant can also be sent out for a twenty day period of observation. The time can be extended to forty days if necessary. At the end of the observation and evaluation period there will be a hearing on the issue of competency. If the judge finds that the defendant is not competent to stand trial then the case will be continued until he is ready to stand trial. So, as I tell my clients, they will most likely have to face the charges at some point. Until they do so they will be incarcerated, likely in the Bridgewater State Hospital, waiting for a determination that they are competent to stand trial. This is probably what happened to Austin. He was indicted in 2009. A challenge to his competency was made. The case was delayed and now he is competent to face the Child Pornography charges.
In sum, challenging a defendant’s competency to stand trial is not a defense to a crime. It merely delays the prosecution. There will be a strong likelihood that during the delay the defendant will be incarcerated in a treatment facility. Eventually he will be in court defending the charges.