The Eastern District of Virginia, US Federal District Court, is one of the most active districts in the country when it comes to the prosecution of child pornography cases. For example, in fiscal year 2019, the Eastern District of Virginia had the highest number of non-production child pornography prosecutions of any federal district in the country.
This article summarizes some of the key points about child pornography prosecutions in the Eastern District of Virginia.
The US Attorney’s Office for the Eastern District of Virginia prosecutes child pornography cases aggressively.
Federal prosecutors in the Eastern District of Virginia take a particularly aggressive approach to charges of child pornography. The office has a policy to seek the most serious provable charges, with the highest mandatory minimum sentences. This means that when federal agents and prosecutors obtain evidence in any given case, they will work hard to investigate and find instances of conduct that will trigger the mandatory minimum sentences. They will first look for evidence that the charged individual or suspect produced—that is created—child pornography, which triggers a 15-year mandatory minimum for first offenders. They will also look for evidence that an individual received, distributed, or transported child pornography. For first offenders, this triggers the 5-year mandatory minimum. Importantly, although the elements of receiving child pornography (5-year mandatory minimum) and possession child pornography (no mandatory minimum) differ only slightly, prosecutors in this district will always opt to charge receipt, which carries harsher sentencing guidelines and a minimum of 5 years. This has been the policy of the EDVA US Attorney’s office for roughly a decade.
In many cases, Judges in the Eastern District of Virginia do not believe the charging practices of the US Attorney’s Office are fair.
While the US Attorney’s Office takes an aggressive and inflexible approach in charging cases, the Judges of the court often taken issue with these decisions. This view, although not shared by all judges, reflects a wider recognition that child pornography sentences—including the mandatory minimums and the sentencing guidelines—are far too harsh. For example, in a 2013 decision, the US Court of Appeals for the Fourth Circuit questioned the fairness of charging an 18 year old defendant with no criminal record with a 15-year mandatory minimum offense, rendering his life “beyond repair.” United States v. Hashime, 734 F.3d 278 (4th Cir. 2013). This case arose out of the US District Court for the Eastern District of Virginia, in which the trial judge was disturbed by the government’s decision to pursue the 15-year charge.
The above case is not unique, and defense lawyers frequently face situations in which the true nature of the offense is accessing or downloading child pornography to view, but the US Attorney’s Office opts to pursue charges in which judges have no choice but to impose the 5-year mandatory minimum.
Obtaining the best outcome
The first step to obtaining the best outcome in child pornography cases in the Eastern District of Virginia is to understand the realities of charging decisions, and the dynamics we have discussed above. Working with an experienced attorney is crucial to get the best outcome. Each case will of course turn on its own facts—including the facts of the charged offense, the nature of the evidence gathered by the government, and the facts and circumstances of each individual charged. A skilled defense attorney will search for the weaknesses in the government’s case –both legal and factual. Aside from any defenses that can be asserted at trial, an experienced attorney will develop a strategy to use these points in other ways, including a bench trial (before a judge with no jury), plea negotiations, and sentencing.