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Internet crime defense team argues against government's formula

Although skilled and aggressive defense representation is routinely important to any individual charged with a federal crime, it can certainly seem in many instances that it is even more critical in a child pornography case. In virtually any instance that criminal investigators suspect a person is in possession of or has distributed child pornogaphy, they will act aggressively and with all the considerable resources at their disposal. 

Countering that requires a defense attorney with specialized experience and knowledge, often in technical matters concerning computer sharing networks, downloads, embedded files, files storage and the creation of forensic reports.

A federal child porn case that is currently before the U.S. Court of Appeals for the D.C. Circuit is noteworthy for its consideration of how a person who pleaded guilty to one count of possession and distribution of child pornography can be tasked to pay restitution to the victim. At issue is the government's formula essentially proposing that total losses simply be divided by the number of defendants and then adjusted.

In the first instance, the trial court accepted that formula and ordered the defendant to pay $5,000. His attorney argued on appeal, though, that the formula was arbitrary and did not link the client to any specific losses said to be sustained by the plaintiff. The appellate judges agreed and remanded the matter back to the trial judge.

The second time around, the lower court reduced the award to zero, and the government appealed, arguing that the formula was fair and workable.

The case is now back again with the appeals court. In oral arguments, the defendant's attorney told a panel of judges that the formula was "unworkable" and that several courts could not find an answer for how to reasonably calculate losses in such a case (the defendant was one of many defendants, and the formula did not address the degree to which one individual possessing or seeing an online image is responsible for a victim's harm and paying restitution).

The defense team is arguing that, absent specific evidence from the government tying the client to known and specific losses, no payment should be required.

Source: The Blog of Legal Times, "D.C. Circuit Court weighs child pornography restitution case," May 13, 2013

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