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CRM 1500-1999

1969. Certain Activities Relating To Material Involving The Sexual Exploitation Of Minors

NOTE: See also the Criminal Resource Manual at 2467

Title 18 U.S.C. § 2252A is identical to 18 U.S.C § 2252, with two 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" that 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 possess 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 subsequent conviction under this Section, under Chapter 109A, or under the laws of any state relating to aggravated sexual abuse, or abusive sexual conduct involving a minor or ward, or the trafficking in child pornography. The penalty for violation of Subsection (a)(5) is a maximum sentence of five years and/or a fine for the first offense, and a two year mandatory minimum with a ten year statutory maximum if 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 found 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 JM 9-75.001; JM 9-75.040]