Saturday, February 5, 2011

Child porn prosecutions soaring

The Associated Press

SAN FRANCISCO — FBI agent Stacie Lane sat at her computer at
the FBI headquarters in Maryland one June morning in 2007, launched
the notorious file-sharing software LimeWire, typed the search
query "10yo" and went hunting for child pornography.

Within an hour, Lane was downloading images from Max Budziak's
home computer in San Jose.

Last month, a federal jury in San Jose convicted Budziak, 66, of
possessing and distributing child pornography. The former letter
carrier with no previous criminal history was immediately taken into
custody and is facing a minimum of five years in prison when he is
sentenced April 25. Budziak is likely to receive a more severe penalty-
a common occurrence with federal child pornography prosecutions
because the influential U.S. Sentencing Commission guidelines
typically advise judges to mete out longer sentences than the
minimum.

The number of federal child porn cases has exploded during the last
15 years as Congress passed mandatory five-year minimum sentences
and federal authorities have declared such investigations a priority.

The FBI has made more than 10,000 arrests since 1996 and U.S.
Immigration and Customs Enforcement agency reports a similar
number of arrests since its creation in 2003. The U.S. Department of
Justice says prosecutions are up 40 percent since 2006 resulting in
roughly 9,000 cases. In 2009, 2,315 suspects were indicted.

Local authorities across the country are also stepping up their child
pornography investigations, which often require little more than a
technically savvy agent, a high-speed Internet connection and so-
called peer-to-peer software that millions of computer owners use to
legally and illegally swap music, videos and other digital files.

The number of child pornography prosecutions is still dwarfed by drug
and immigration cases that flood federal court dockets, but no other
crime is growing at the 2,500 percent rate the FBI claims for child
porn arrests.

The FBI predicts that the cases will only continue to grow as appeals
courts approve their search and seizure methods. The convictions are
expected to continue even though a federal judge shut down LimeWire
after the recording industry sued the company for copyright
infringement.

LimeWire was a popular file swapping tool, which the FBI modified for
its child pornography purposes. But similar peer-to-peer programs are
accessible online and offenders continue to swap images by e-mail.

A typical child pornography conviction resulted in an average prison
sentence of slightly more than a year in 1996.

Defense attorneys, legal scholars and even some federal judges
bemoan the prosecution and sentencing developments as draconian
for failing to distinguish between hardcore producers of child
pornography and hapless Web surfers with mental problems.

"It's not pretty," said the attorney Michael Whelan, who represents

Budziak. "There are exceptions, but generally speaking most
prosecutions are of a sorry individual with a bad habit."

Last year, U.S. District Court Judge Jack Weinstein of New York
publicly blasted child pornography punishment when he rejected
prosecutors call for a prison sentence of more than 11 years for Pietro
Polizzi, a father of five caught with thousands of images on his
computer. Weinstein reluctantly sentenced Polizzi, who claimed to
have been repeatedly raped as a child in Sicily, to the mandatory
minimum sentence of five years.

The judge said that Polizzi needs mental health treatment rather than
incarceration and said he posed no risks to the community.

"Convincing evidence demonstrates that he presents no appreciable
risk to any child or adult, but that he needs treatment for childhood
based psychiatric problems," the judge said in a written statement last
month explaining his sentence. Other judges have called on the U.S.
Sentencing Commission to give them more flexibility in sentencing
first-time offenders convicted of distributing child pornography.

For their part, prosecutors and child advocates such as the National
Center for Missing and Exploited Children argue the harsh penalties
are justified. They say that consumers of child pornography keep the
trade alive.

Appeals courts agree. Last month, the Atlanta-based 11th Circuit
Court of Appeals ordered those convicted of child pornography to pay
restitution to the victims whenever possible. It's the second appellate
court to make such a ruling.

"The end users of child pornography enable and support the continued
production of child pornography," Judge Charles R. Wilson wrote for
the unanimous three judge panel on Jan. 28. "They provide the
economic incentive for the creation and distribution of the
pornography, and the end users violate the child's privacy by
possessing their image. All of these harms stem directly from an
individual's possession of child abuse images."

That's what prosecutors argued last month in insisting that Zachary
Snead, 25, serve seven years in prison after pleading guilty to

distributing child pornography via e-mail.

A chat room buddy turned Snead into the National Center for Missing
and Exploited Children after he began boasting about having sex with
a 7-year-old boy and a toddler. The center, in turn, turned over the tip
to investigators, who found hundreds of child porn images on his
computer. They concluded, however, that Snead's molestation boasts
were twisted fantasies on which he didn't act.

Nonetheless, Assistant U.S. Attorney Daniel Kaleba told U.S. District
Court Judge Jeremy Fogel in San Jose that the college graduate's
crime was a violent one requiring the harsh sentence.

"Mr. Snead engaged in such conduct to fulfill his disturbing and
aberrant sexual interests," Kaleba said in court papers. "He also
victimized the children portrayed in the images by viewing and
distributing such images."

The judge agreed and sentenced Snead to seven years in prison and
ordered him taken into custody immediately. Snead will have to
register as a sex offender upon his release from prison.

"He will have to carry the stigma of an ex-con and a registered sex
offender for the rest of his life," his mother Angela Snead wrote in a
letter to the judge before the Jan. 20 sentencing. "It will be a waste of
a young person's life and his human potential as a whole, functioning,
taxpaying citizen."