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He's actually looking at receipt, but I don't

Posted by Leucosticte on Monday, June 29 2020 at 06:12:40AM
In reply to It's a shaky defense posted by sans on Monday, June 29 2020 at 00:57:09AM

think they can prove it beyond a reasonable doubt. What they have are a bunch of deleted files from his phone, and it doesn't seem they've been able to identify what sites they came from, or when they were downloaded, etc. They just have a couple deleted bookmarks to child erotica sites, and they're speculating that maybe there were hidden CP sub-forums for logged-in users. So it's not clear the receipt charge can stick. If it did stick, he'd be looking at 15-40 years, as a second-time offender.

The evidence that he received CP is circumstantial. He could've produced it, theoretically, in which case he'd be innocent of receipt. Or it could've ended up on his phone in some other way (virus, popups, someone else borrowing it, etc.)

Willing possession does not, by itself, prove willing receipt. See the Miller case in the 3rd circuit, which says that "the proposition that a conviction for receiving child pornography must be supported by a greater quantum of evidence than that minimally required to prove guilt of possessing child pornography-is correct."

Here, you can look at the documents. He's in the 6th circuit, if that helps.

Nah, he's not pro se; he has a lawyer. Unfortunately, he's in jail, and the Covid crisis is ongoing, which makes it hard for him to meet with his lawyer. He waived his detention hearing, but reserved the right to request such a hearing later. I've suggested that he file a motion to get released pending trial, but he's reluctant to follow this advice, because he thinks he's going to get convicted and he wants to continue accumulating credit for time served so he can get it over with. He's pinning his hopes on the appeal.

I was talking about the 6th Circuit Caldwell case referenced in the U.S. Attorney Manual in the link below.

This particular defense reminds me of this one case I read about, where a guy accused of cultivating marijuana with the intent to distribute it claimed as his defense that he smokes pot all the time, and so he was planning on using his entire stash for personal use.

Normally, pot use would be used as an indication of bad character, or that he might be the type to be involved in drug-related activity (e.g. to feed his habit), but in this case, it actually worked to the guy's benefit because he got a slap on the wrist given that cultivation carried much higher penalties if it's for distribution.

If you can claim that your somewhat unsavory motives actually tend to disprove that you had even worse unsavory motives, then I guess it can work to your benefit, unless the jury decides to nullify and convict you just because they don't like you. Therefore, I suggested that a bench trial might be helpful, although that also has some downsides (e.g. the judge will have seen all the evidence in the case, including stuff that could be excluded from being presented to a jury under Rule 403 because its probative value is outweighed by the danger of unfair prejudice).

• ( https link ) Internet Pornography and Child Exploitation

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