San Jose Criminal Defense Law Blog

Authorities say that a former Santa Clara County health care administrator traded drug prescriptions for methamphetamines. When investigators raided his home, they found several types of drugs, weapons, drug paraphernalia, and even a hidden room where the defendant allegedly grew marijuana.

The government charged the former official with possessing illegal drugs for sale and prescribing drugs without a medical purpose. According to the allegations, the official wrote prescriptions for 29 other people. The prescriptions ordered Oxycontin treatment, along with other powerful medications. In exchange, authorities say that the man received cash and methamphetamines.

Our most recent post introduced a two-part series on factors that can affect the penalties for a child pornography-related conviction. The same federal judge issued sentences in two separate California child pornography cases on the same day. This post will look closer at those two sentences in addition to other factors that can affect child pornography consequences.

Like other online sex crimes, the penalties for child pornography convictions are severe. Many convictions result in a minimum five-year prison sentence followed by supervised release periods and mandatory registration as a sex offender.

In the first case, the defendant pled guilty to possessing 54 images on his cellphone and received a 10-year sentence, followed by 15 years of supervised release. The second defendant pled guilty to receiving much more material-280 videos and 478 images. He will serve only six and a half years in prison, again followed by supervised release.

While the consequences of a child pornography conviction are always serious for defendants, sentences can vary between cases. This is the first of a two part series that will look at two recent California child pornography sentences.

This post will summarize the two recent California cases. Although a federal judge announced the sentences in both cases on the same day, the cases are completely separate. Our next post will point out some ways in which these cases illustrate the factors that can affect a child pornography sentence.

Criminal prosecutions in the United States are loaded with rules and processes to avoid sending innocent people to prison. In many cases, however, those measures fail to prevent a wrongful conviction-often because a prosecutor's misconduct inappropriately affected the verdict.

An organization called the Northern California Innocence Project recently hosted a panel discussion after releasing its annual report on wrongful convictions. The report painted a severely unflattering picture of numerous errors and misconduct on the part of prosecutors. It found misconduct in 92 California cases, occurring at all stages of the court process. Eleven percent of the errors were severe enough to require a retrial or vacated conviction.

We have frequently covered the deep divide between the federal Drug Enforcement Agency and the states that have legalized marijuana. Although those 16 states, including California, allow residents to possess and use marijuana for medical purposes, the DEA still considers it to be against federal law. The DEA categorizes marijuana as a Schedule I drug-right alongside heroin.

The gap between the two bodies of law puts California residents and legal growers in the uncomfortable position of running the risk of federal drug possession charges while still complying with state law.

This week, a marijuana advocacy group challenged the DEA's classification, asking a federal court of appeals to force the agency to hold a new hearing and consider evidence that it ignored in the past. As a Schedule I drug, marijuana currently receives the strictest regulation. By comparison, cocaine is only a Schedule II drug and most prescription drugs rank far lower in the system.

Earlier this week, the Ninth Circuit decided that storing child pornography in an accessible "shared" folder on a peer-to-peer (P2P) network counts as distribution. While this points to courts starting to handle this question the same way, the decision certainly does not resolve all P2P issues in child pornography cases.

The ruling does not even end this defendant's child pornography case-the remaining issues are a good example of the questions that confront many defendants in child pornography prosecutions.

To investigate child pornography cases, the FBI uses software called EP2P to yank copies of files off of defendant's computers for analysis. Because the public knows very little about EP2P, this defendant asked a lower court to give him access to the software and its specs to help with his defense. Although the lower court denied this request, the Ninth Circuit reversed that decision and sent the case back to look at whether a better look at the FBI's software could have changed the outcome.

Another federal court of appeals confronted the issue of peer-to-peer (P2P) file sharing in the context of child pornography distribution charges. The Ninth Circuit Court of Appeals-whose jurisdiction includes California-ruled that storing child pornography in a shared folder on a P2P network can count as distribution.

This question is a problematic one in child pornography cases. To start with, it is a much more serious federal crime to distribute child pornography than to possess and view it. Many computer users download files on P2P networks. Default software settings usually put all downloaded files into a "shared" folder that allows the software to harness that user's computer to speed up downloads for other users.

In effect, the software automatically tries to redistribute all files that a user downloads, creating the appearance that the user shared the files intentionally.

In the world of online file-sharing, it can be difficult to separate fact from appearances. California child pornography prosecutions illustrate one potential problem that can arise from this reality. It is entirely possible for computer users to inadvertently download illegal child pornography disguised as something else. File-sharing software can launch those files back out into the online community.

As a result, computers can create the dangerous appearance of criminal activity like possession or distribution of child pornography. Resulting criminal charges can have enormous and harmful consequences for innocent defendants.

A case from Indiana offers a good example of this. A deputy sheriff faces charges of possessing and distributing child porn after authorities traced illegal downloads to his IP address. When police searched his computer, they found multiple sexually explicit videos involving children.