Government must prove beyond reasonable doubt that real children are depicted in images in child pornography prosecution under 18 U.S.C. § 2252(a)(1)

SEARCH & SEIZURE/BURDEN OF PROOF/SENTENCING United States v. Sims, No. 03-2151, ___ F.3d ___ (10th Cir. Nov. 9, 2005)(New Mexico). Appeal of convictions and sentence for attempting to entice minor to engage in sexual acts, traveling in interstate commerce for purpose of engaging in sexual acts with minor, and transporting child pornography by interactive computer system in violation of 18 U.S.C. § 2422(b), 2423(b), 2252(a)(1), and 2252(a)(2). HELD: (1) Technical violation of search warrant (i.e., executing one day after expiration) does not require suppression of seized evidence if violation of warrant’s terms were not prejudicial or intentional. (2) In prosecution for transporting by interactive computer system visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(1), government must prove beyond reasonable doubt that real children are depicted in images giving rise to prosecution. However, expert testimony or identification of actual child-victims is not always necessary. In cases where no evidence suggests images are anything other than real, government need not offer evidence beyond images themselves because jury is capable of distinguishing between real and virtual images. (3) Factual impossibility is not defense to offense involving enticement and exploitation of minors. (4) Fictitious children used as part of undercover sting operation may be treated as separate victims for offense grouping purposes under sentencing guidelines. (5) Attempting to entice minor to engage in sexual acts, traveling in interstate commerce for purpose of engaging in sexual acts with minor, and transporting child pornography by interactive computer system are offenses that inherently include serious threat of violence. Therefore, sentencing departure under U.S.S.G. § 5K2.13 based on diminished capacity is not permissible. Read the opinion here.