Certain activities relating to material involving
sexual exploitation of minors
NOTE: See also the Criminal Resource Manual at
Title 18 U.S.C. § 2252A is identical to 18 U.S.C § 2252,
exceptions. First, section 2252A expands the definition of the prohibited
material by using the more inclusive term "child pornography" instead of the
words "visual depiction of a minor engaging in sexually explicit conduct"
is utilized in § 2252. A second difference is found in the possessory
offense set forth in § 2252A(a)(5)(B), which makes it illegal to
an image of child pornography.
Section 2252A imposes, for the first four offenses, a maximum 15 years'
imprisonment and/or a fine for the first offense and a minimum five years'
imprisonment to a maximum 30 years' imprisonment and/or a fine for a
conviction under this Section, under Chapter 109A, or under the laws of any
relating to aggravated sexual abuse, or abusive sexual conduct involving a
or ward, or the trafficking in child pornography. The penalty for violation
Subsection (a)(5) is a maximum sentence of five years and/or a fine for the
offense, and a two year mandatory minimum with a ten year statutory maximum
the offender has a prior conviction as set forth above. The 1998
legislative amendments included this section under the forfeiture provisions
of Sections 2253 and 2254.
This Section was challenged in United States v. Hilton, 167 F.3d
61 (1st Cir. 1999). The appeals court, unlike the district court, found
that the 1996 amendment to the child pornography definition in Section 2256
was constitutional, and therefore not vague and overbroad. Similarly, in
United States v. Acheson, 195 F.3d 645 (11th Cir. 1999), the court
that the Child Pornography Prevention Act (CPPA) was not facially invalid,
not overbroad, and not void for vagueness.
On December 17, 1999, a majority panel of the Ninth Circuit, in Free
Speech Coalition v. Reno,___ F.3d ___, 1999 WL 1206649, held that two
subsections of th child pornography definition section were
unconstitutionally vague and overbroad In following the statute's
severability clause, the panel then severed the language "appears to be [a
minor]" set forth in 18 U.S.C. § 2256(8)(B) and the language "convey[s]
the impression [that the material is or contains a visual depiction of a
minor]" set forth in 18 U.S.C. § 2256(8)(D) from the statute.
[updated April 2000] [cited in USAM 9-75.001; USAM 9-75.040]