|9-75.020||General Prosecution Policies and Priorities|
|9-75.030||Coordination of Cases and Investigations|
|9-75.100||Multiple District Investigations and Prosecutions|
|9-75.420||Obscenity/Sexual Exploitation—Federal-State Relations|
9-75.020 - General Prosecution Policies and Priorities
Prosecution of all crimes involving the sexual abuse or sexual exploitation of children and the distribution of child pornography is strongly encouraged. Investigation has shown that many individuals who produce, import or consensually exchange child pornography do so repeatedly and with full knowledge that it is illegal to do so. In addition, many of these individuals engage in child sexual abuse or would like to do so, given the right opportunity. Many of these people also intentionally engage in occupations or activities that bring them into frequent contact with children. Finally, many people use child pornography to encourage their child victims to engage in sexual activity. In evaluating such cases, consideration should be given to, inter alia, characteristics of the material, such as the age of the involved child, the type of conduct depicted, the number of involved children, the quantity of the involved material, whether violence or force is used against the child, and characteristics of the target, such as whether the target currently is engaging in sexual activity with children, whether the target is the parent or guardian, or is in a position of trust with the depicted children, whether the target has shown the material to children, whether the target is making money from the conduct, whether the target has committed any prior offenses involving child sexual abuse or exploitation, and the safety of the community.
Prosecution of large scale distributors of obscene material who realize substantial income from their multi-state operations also is encouraged. Prosecution priority should be given to cases in which there is evidence of involvement by known organized crime figures. However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations. Therefore, prosecution of such distributors also may be appropriate on a case-by-case basis. In evaluating obscenity cases, substantial deference should be given to the United States Attorney's determination of the viability of the case based upon the factors set forth in Miller v. California, 413 U.S. 15 (1973). Under the legal test of obscenity set forth in that case, material is obscene if, taken as a whole, the average person in the community would find that the material appeals to the prurient interest of its intended audience, depicts sexual conduct in a patently offensive way, and a reasonable person would find the material, taken as a whole, lacks serious literary, artistic, political or scientific value.
9-75.030 - Coordination of Cases and Investigations
CEOS and USAOs will work together to ensure that crimes involving child pornography, child sexual abuse, child sexual exploitation and obscenity are vigorously enforced throughout the nation. Generally, such crimes are prosecuted by the USAO in the relevant district. However, USAOs shall inform CEOS of all significant investigations and cases being prosecuted in the district as well as all significant judicial decisions issued in such cases.
CEOS attorneys have substantial experience in prosecuting these types of crimes and they are available to assist in the investigative stage and/or to handle trials as chair or co-chair. CEOS attorneys may also initiate any activity related to an investigation or prosecution in a district, but before doing so, CEOS shall notify the United States Attorney for that district. If the United States Attorney objects to CEOS initiating the activity, the matter shall be resolved by the Deputy Attorney General.
9-75.100 - Multiple District Investigations and Prosecutions
Multiple district investigations are investigations in which either (1) the target commits the criminal conduct in more than one district or (2) there are multiple targets who may be located in different districts. An example of the first type of investigation is an individual who coerces victims in multiple states to produce and send him sexually explicit images and, therefore, is subject to prosecution in every district where a victim is located. An example of the second type of investigation is that of a child exploitation enterprise engaged in advertising, distributing, and receiving child pornography over the Internet, where the targets are located in many different districts.
All districts implicated in a multiple district investigation shall consult with each other to determine how best to proceed. Coordination with the Child Exploitation and Obscenity Coordinator in each district is encouraged. Generally, multiple prosecutions are not favored. See JM 9-2.031 for policies relating to multiple prosecutions. In deciding in which district(s) to initiate charges or enter into a global plea agreement with the defendant(s), the following factors should be considered: (1) which district initiated the investigation; (2) the resources devoted by the district to the investigation; (3) where the most serious offense was committed, (4) where the most harm was caused, (5) residence of witnesses, (6) residences of victims, (7) location of evidence, and (8) applicable law. Consistent with the Attorney General’s Guidelines for Victim and Witness Assistance, restitution should be considered early in the investigation and throughout the prosecution.
In multi-district investigations that are likely to generate leads and prosecutions in numerous districts (but are not national investigations under JM 9-75.110 involving more than 15 districts), USAOs should notify CEOS as early as possible in the investigative stage to permit coordination and early resolution of venue issues, if any.
9-75.110 - Nationwide Investigations
"Nationwide Investigations" are investigations that will likely have an impact in at least fifteen districts. (See JM 9-75.100 "Multiple District Investigations and Prosecutions" if the investigation will likely affect less than fifteen but more than one district.) Because such investigations will have a broad impact, an attorney should always supervise their development and implementation. The supervising attorney can be either a USAO or CEOS attorney. The supervising attorney, whether from CEOS or a USAO, shall notify CEOS and the Child Exploitation Working Group of the AGAC (through CEOS) during the development of a nationwide investigation, and shall cause all United States Attorneys to be notified of the nationwide investigation prior to its implementation.
The supervising attorney conducting a nationwide investigation shall notify the Child Exploitation and Obscenity Coordinator in each district where a potential defendant is located as soon as that information develops. This will permit any United States Attorney to provide input regarding potential problems with the initiative that may hinder later prosecutions in his or her district.
The supervising attorney shall keep CEOS and the involved Coordinators apprised of the progress of the investigation. The supervising attorney shall also complete and submit to CEOS and the Child Exploitation Working Group of the AGAC (CEO Working Group), a "Notification of Child Exploitation Investigation" form.
A review of the proposed nationwide investigation will be performed by an Advisory Committee (appointed by the Child Exploitation and Obscenity Working Group of the AGAC). The Advisory Committee is comprised of six Assistant United States Attorneys (AUSAs) with expertise in the area of child exploitation investigations, one attorney from the Child Exploitation and Obscenity Section of the United States Department of Justice, and technical advisor(s) as deemed necessary by the Advisory Committee. The six AUSAs selected by the CEO Working Group should be selected with consideration of subject-matter expertise, experience, and office size and/or location; and should represent a diversity of viewpoints. Upon reconfiguration of the Advisory Committee in 2014, members will serve terms on a staggered basis with two members leaving the Advisory Committee every two years. The two Advisory Committee members with the most experience with the Department will be the first members to have their terms expire. Every two years, the terms of the most experienced members on the committee will expire. No Advisory Committee member shall serve a term of longer than six years.
Prior to the expiration of an Advisory Committee member's term, the EOUSA liaison to the CEO Working Group shall advertise for new AUSA members to be nominated by the United States Attorneys to fill the vacancy. CEOS will submit a recommendation to the CEO Working Group for any vacancy of the CEOS Advisory Committee member. The EOUSA liaison will forward the nominated AUSA candidates to the CEO Working Group. Membership selection decisions will be made by the Chair of CEO Working Group, in consultation with all Working Group members.
The Advisory Committee will review all proposals for nationwide child exploitation investigations and offer advice regarding the investigation. The Advisory Committee, upon receiving a notification, will notify all districts that a notification has been received and is under consideration by the Advisory Committee. The Advisory Committee will discuss the proposal with the initiating district and present advice to the initiating district. The Advisory Committee will prepare a brief report regarding its advice and disseminate the report to all districts within fourteen working days of receiving the notification.
The Advisory Committee also provides consultation, advice, and recommendations to the Child Exploitation and Obscenity Working Group of the AGAC on an as-needed basis.
9-75.400 - Obscenity/Sexual Exploitation—Venue
Cases under the obscenity and child pornography statutes in which the proscribed item is mailed may be prosecuted in the district where the material is mailed or deposited with a facility of interstate commerce, the district of receipt, or any intermediate district through which the material passes. See 18 U.S.C. § 3237. In cases where there are complaints by postal patrons about the unsolicited receipt of child pornography or obscene material, the district of receipt would appear to be the appropriate choice of venue. On the other hand, in cases involving numerous mailings by a distributor into various districts, the district of origin may be the appropriate venue for the case. Furthermore, if a case is to be based solely upon test purchases by postal inspectors, it may be venued in the district of receipt where the government has some information showing that there were prior mailings into the recipient districts by the individual involved. Prosecutions should not be brought in jurisdictions through which obscene material passes in transit except in unusual circumstances.
Cases under the child pornography and obscenity statutes in which the crime was committed via computer may be prosecuted in the district where the defendant committed any of the acts proscribed in the statutes. In general, in cases in which the crime was committed via the computer, all of the charges distribution, receipt, possession, etc.) should be brought in the district in which the target and his computer are located. Multiple prosecutions generally are discouraged.
9-75.410 - Pre-trial Diversion
Pre-trial diversion for crimes involving child pornography, child sexual abuse, the sexual exploitation of children and obscenity is generally not favored, however, it may be an appropriate and just disposition in certain cases.
9-75.420 - Obscenity/Sexual Exploitation—Federal-State Relations
Federal prosecution of obscenity and child pornography cases should focus upon producers and interstate distributors. However, cases involving straight possession may warrant federal prosecution and production and distribution cases may be more appropriately prosecuted in state court. Moreover, many cases include both federal charges (such as distribution of pornography) and local charges (such as sexual abuse). Hence, cooperation between federal and local officers and prosecutors is strongly encouraged and can be highly productive in both federal and local efforts. See Fed. R. Cr. P. 6(e). The formation of multi-agency and multi-jurisdictional task forces is strongly encouraged.
[updated April 2000]