Child Pornography Charge Criminal Defense Lawyer in Cape Coral, Florida (FL)
If you are charged with possessing child pornography or suspect you are under investigation for possession of child pornography in Cape Coral, Florida, you need expert legal representation fast. Waiting to “see how things shake out” will only lead to disaster. Even if you did nothing wrong, you could still find yourself engulfed by the fury of a child pornography investigation and wind up facing charges that are not only embarrassing, ruinous, and shocking, but also could send you to the state’s prison for several years. Then, after getting out of prison, you will need to register as a sex offender, be on probation for years, and even wear a device to track your whereabouts every single day.
The state’s attorney for the 20th District and the federal authorities take possession of child pornography very, very seriously. So too do the law enforcement officers who investigate allegations surrounding child pornography in Cape Coral. Prosecutors push for lengthy prison sentences and onerous conditions of release for suspects rounded up by police in clandestine stings. The stings run by police can come very close to entrapment, that is how aggressively law enforcement officers pursue child pornography offenders.
One of the most widely-reported law enforcement stings, which recently made headlines, involved several employees of Disney World. Police arrested nearly twenty people after that investigation. The accusations were stunning and cast a pall over the reputation of the amusement park, all because of the name of the charge and nothing more.
Law enforcement officers and prosecutors follow the evidence as far as it will take them, but sometimes they get it wrong. Our system of justice is imperfect, and people make mistakes. Sadly major mistakes force people wrongfully accused to endure the public outrage surrounding child pornography charges. People mistakenly charged or people who face charges that exaggerate the nature of the allegations still could lose their jobs, their homes, their families, and their current way of life. However, at the end of the day, a Cape Coral defense attorney who understands what is at stake and has the skill, along with the necessary experience, to defend people who were charged wrongfully, win their freedom, and help repair their lives.
The highly skilled and seasoned child pornography defense attorneys from Musca Law have the vast experience required to preserve your rights, help you maintain your dignity, and achieve the best result possible for your Cape Coral child pornography charges. The best result might mean winning an acquittal after a trial or winning a motion to suppress evidence. In some instances, the best result is achieved by plea bargaining the accusations to lesser charges.
Engaging the Cape Coral child pornography defense attorneys with Musca Law can help you fight the battle in the courtroom and help you restore your life to the way it was before you were charged. Call Musca Law today at 888-454-5057 to discuss your case with our Cape Coral child pornography defense attorneys and launch a strategy to defend your freedom.
Cape Coral Child Pornography Charges
Florida’s criminal law divides child pornography charges into several different offenses. Usually, the law enforcement officers who investigate these accusations and the state’s attorneys who prosecute them want the harshest criminal charges to issue against a person suspected of being involved with child pornography. The standard of proof required to charge a person with a crime is not high. The police need only probable cause to arrest a person and charge that individual with a crime.
Conversely, the standard to convict is the highest evidentiary standard attainable in the legal profession. The standard of beyond a reasonable doubt is extremely high. While stopping short of requiring absolute truth to attain a conviction, the burden of beyond a reasonable doubt is an exacting standard the prosecution must satisfy to attain a conviction.
Child Pornography Possession
It has been said time and time again that a picture is worth a thousand words. In Florida, a picture — if it is child pornography — is worth five years. As a third-degree felony in Florida, possession of child pornography carries a maximum prison sentence of up to five years per count. The state’s attorney and police could bring one charge of possession of child pornography for every photograph seized from the suspect’s property.
The state’s attorney has only two elements to prove when prosecuting a person for possession of child pornography. The first element is possession. Possession is a legal term that could refer to actual possession or constructive possession. Actual possession is the physical act of holding onto something or directly controlling an item. Constructive possession refers to knowledge of an item coupled with the present intention to exercise dominion and control over the item that is not within a person’s direct control.
Proof of the second element of the crime hinges on the definition of pornography involving a child. Under Florida law, a child is a person who does not have the legal capacity to consent to sexual activity because the child is under eighteen. Defining pornography is trickier. However, an image is pornographic in nature if it shows people engaged in a sex act.
The penalty for possessing one photograph is severe. However, the state of Florida tries to deter people from possessing child pornography by imposing draconian prison sentences with the expectation that no one will try to obtain these images. By reducing the market for child pornography, the theory goes, there will be fewer incidents of child sexual abuse.
The federal authorities also have jurisdiction to prosecute child pornography cases. Federal prosecutors obtain jurisdiction over child pornography cases when an image is transmitted from one person to another by use of a telephone line (including mobile technology) or the U.S. mail. Offenders convicted of child pornography at the federal level can expect to receive a harsh punishment. The maximum penalty for possession of child pornography at the federal level is fifteen years.
Displaying Pornography to Minors
Showing pornography to a child is a crime in Florida. The images shown to the child need not meet the definition of child pornography to be a criminal offense; pornographic material depicting adults shown to a child is a crime.
Displaying pornography to minors is a first-degree misdemeanor. First-degree misdemeanor convictions in Florida may be punished by a term of incarceration in the county jail not to exceed one year along with a fine that cannot exceed $1,000.00. However, subsequent offenses could give the sentencing judge the discretion to increase the possible prison term and increase the fines levied. Additionally, the individual convicted of this crime must register as a sex offender.
Child Pornography Distribution
If a person advertises, distributes, directs, or produces pictures or video content showing a minor engaging in a sexual act, then that person may be convicted of distribution of child pornography. Distribution of child pornography is a fifteen-year felony in Florida. Also, a judge could levy a fine of not more than $10,000.00 against the offender. Furthermore, the offender will be required to register as a sexual offender.
Child Pornography Manufacturing
Manufacturing child pornography as a crime is similar to the distribution of child pornography. The charge calls for a fifteen-year commitment to the state penitentiary as a second-degree felony. The government must prove that the suspect directed or produced a video or photographed a child committing a sexual act. Additionally, a person could be convicted of this charge by soliciting another to participate in creating child pornography content.
Sentencing Considerations
Sex offenses are severely punished in Florida. Lee County judges have a reputation for sending child pornography offenders to prison for long stretches. In Florida, judges have the discretion to impose prison sentences for multiple charges consecutively. In other words, the offender could receive a five-year prison sentence for each unlawful photograph in that person’s possession, with the sentences running “from and after” each other. Therefore, if the accused is convicted of five counts of possession of child pornography, the judge could incarcerate the offender for a maximum of 25 years.
With the specter of spending decades in prison, a person facing child pornography charges in Cape Coral must contact Musca Law’s child pornography defense lawyers immediately to begin working on a formidable and successful defense.
Additional Charges Often Accompany Child Pornography Charges
Child pornography charges can stand alone or accompany other charges, depending on the evidence uncovered during the investigation. One thing is certain: prosecutors include as many charges as possible in an information or indictment. Legally, the prosecutor can sign off on any charge that is supported by probable cause. Practically, prosecutors and police file as many charges as possible with the expectation that they will win at least one felony conviction.
Child pornography charges arise during investigations into charges such as rape, statutory rape, lewd and lascivious behavior with a minor, fondling of a minor, sexual battery, or other criminal acts of sexual misconduct involving children, including human trafficking.
Under Florida law, a child cannot consent to have sex because a minor lacks the legal capacity to consent, even if the person is mature enough to verbalize consent and fully comprehend the significance of giving consent. Thus, consent is never a defense to child pornography charges. Consent is not even a defense to statutory rape, even among teens. An experienced, savvy, and battle-tested child pornography defense attorney knows how to embrace the challenges presented by charges in which consent is not recognized by the court as a viable defense yet still devise a persuasive defense.
Collateral Matters in Child Pornography Cases
Prison sentences for convictions of child pornography cases, as previously established, can run for decades. The length of the prison sentence imposed by the sentencing judge depends on the facts of the case as well as the offender’s prior criminal record. The person with serious convictions on his or her record could face a life sentence under Florida’s habitual offender laws.
Collateral consequences accompany convictions for convictions relating to child pornography. All persons convicted of these charges must register as a sex offender. That means they must provide their address to the police annually and update it every time they change residences. The offenders may also be placed on probation, be forced to attend sex offender counseling, wear an electronic monitoring device such as a GPS bracelet, locate housing that is not near a school and be ordered not to have contact with minors. A violation of any of these burdensome conditions of probation could send the offender back to prison.
Federal Child Pornography Crimes
The Federal Bureau of Investigation has the authority to investigate acts relating to child pornography, if, as previously discussed, the imagery is transmitted through electronic means, parcel shipping companies, U.S. mail, or the crime crosses state lines.
Federal laws enacted to protect children carry severe prison sentences as punishment. Federal laws focus on the vulnerability of the children shown in the unlawful images to invoke sentences that could run as long as 30 years or even life for some offenses. Federal authorities focus their investigations on capturing as many people as possible in their dragnet. Some federal charges include depicting a child under twelve engaged in sexual, sadistic, masochistic, or unnatural acts that could send a person to prison for multiple decades. Furthermore, federal prosecutors seek enhanced penalties for charges involving children appearing under five years-of-age and imagery showing minors engaged in sexual acts with each other.
Defense Strategies in Lee County Child Pornography Cases
There is no question that criminal accusations of possession of child pornography repulse most people. Prospective jurors tend to think of their children, grandchildren, brothers, sisters, nieces, and nephews as victims when they first learn that the case they have been called to sit on involves child pornography. Jury members could hear the charge and immediately believe that the person is guilty before listening to one shred of evidence. Our system of justice, predicated upon the presumption of innocence, cannot tolerate jurors who make up their minds before the trial starts.
A successful defense attorney who understands that his or her sole function is to protect the rights of his or her client and not yield to public opinion. Our system of justice will collapse if the weight of public opinion dictates the outcome of a criminal trial.
Not every defense listed below will apply to every case. The surrounding circumstances of the case dictate defenses. Criminal defense is not a “one-size-fits-all” proposition. A savvy child pornography defense attorney will know how to attack the government’s case vigorously with the appropriate defenses.
Erotica Involving Children
Child erotica is not child pornography. The difference between the two could be very subtle. However, the government bears the burden of prove that the imagery is pornography. The accused must be acquitted if the state’s attorney fails to meet that burden. The photos might be distasteful, but if they do not show a child engaged in a sexual act, then the photo is erotica and not pornography.
Unknowing or Unwitting Possession
Possession must be a knowing and voluntary act. The jury must acquit the accused if the government fails to prove the accused’s intent to possess child pornography. This defense arises when a person downloads a file that is corrupted or allows another individual to use his or her computer and that person downloads child pornography. The defense applies in these circumstances because the accused lacked the criminal intent to possess the contraband.
Transitory Possession
Transitory possession means that a person encountered an unlawful photograph or image and then erased, deleted, or destroyed it immediately. However, the image could still exist in the device’s memory. Notwithstanding, if the accused tried to destroy the image as soon as humanly possible, then there is no intent to possess the item, even if some remnant of the deleted image remains in the computer’s memory.
Consent
Adults may consent to be photographed or videotaped during sex acts. Therefore, consent is a complete defense to a charge of possession of child pornography and related charges if the participants were consenting adults. The state’s attorney has to prove the age of the participants was younger than eighteen. However, a thorough investigation by the defense could uncover evidence that the people who made the content were adults.
Unconstitutional Searches and Seizures
Law enforcement officers may seize evidence only when constitutionally permitted. Failing that, they run the risk of the judge suppressing the seized evidence. Law enforcement officers must present probable cause that a crime was committed to receive a search warrant. Furthermore, the warrant must specify the place to be searched and the thing to be seized. The court must suppress all evidence illegally obtained by a search warrant that fails to satisfy those basic constitutional standards. Additionally, the defense may have a viable motion to suppress statements based on a Miranda violation if the police did not give the suspect the Miranda warnings when they interviewed the accused in custody.
Musca Law Child Pornography Defense Attorneys: Your Best Line of Defense
Cape Coral defense attorneys with Musca Law vigorously pursue justice for their clients in every case. Call Musca Law today at (888) 484-5057 to consult with expert criminal defense attorneys. There is no charge for the telephone call or our initial consultation. Do not wait to see what happens. Call our firm now so we can start doing what we do best: protecting the rights of our clients.