[updated April 2000]
9-75.010
RICO Prosecutions
Title 18, United States Code, sections 1461 to 1465 (relating
to obscene material), sections 2251, 2251A, 2252, and 2260
(relating to sexual exploitation of children) and sections 2421 to
2424 (relating to prostitution and white slave traffic) are
predicate offenses for violation of the RICO statutes, 18 U.S.C.
§§ 1961 to 1969. See 18 U.S.C.
§ 1961(l). Questions concerning RICO authorization and
the application of the RICO guidelines should be addressed to the
Organized Crime and Racketeering Section; however, questions
concerning obscenity issues, the sexual exploitation of children or
the transportation of minors for prostitution or other illegal
sexual activities that are involved in RICO should be addressed to
the Child Exploitation and Obscenity Section (CEOS). CEOS and
Organized Crime and Racketeering jointly will authorize RICO
prosecutions that involve a predicate offense of obscenity, sexual
exploitation of children or the transportation of children for
illegal sexual activities. See also
USAM 9-110.000 et. seq. for
additional information on RICO prosecutions.
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.
[updated April 2000]
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, 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.
Prior to initiating any activity related to an investigation or
prosecution in a district, 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. 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.
See also the notification requirement for
18 U.S.C. § 1591 prosecutions in
USAM 8-3.120.
[updated February 2003]
9-75.040
Use of a Computer to Commit Child
Pornography Crimes
Title 18, United States Code, Section 2252 prohibits, among
other things, the interstate distribution of visual depictions of
a child engaged in sexually explicit conduct. This statute is
applicable regardless of the method of distribution (via mail,
shipping, computer, etc.) but it requires that a real child be
involved in the production of the sexually explicit depiction.
Improved computer technology, such as "morphing," has created a
potential defense to section 2252 crimes. Morphing is the term
given to the ability to use a computer to change or create an image
from another image. An example of morphing is taking a computer
image depicting adult pornography and using a computer and specific
types of software to change the faces and bodies of the
participants so that they appear to depict children.
To address this and other problems, Congress passed the Child
Pornography Prevention Act of 1996, which became effective
September 30, 1996. This Act created a new crime, 18 U.S.C. §
2252A, that incorporates an expanded definition of prohibited
material by using the term "child pornography." The Act also
created "child pornography" definitions, 18 U.S.C.
§ 2256(8) and (9), that eliminate the requirement that a
real child be involved in the production of the visual depiction.
The constitutionality of the new statute, including the "child
pornography" definitions, is being challenged in jurisdictions
throughout the nation. See the Criminal
Resource Manual at 1969 for further information.
9-75.050
Telecommunications
Title 47 U.S.C. § 223 makes it a Federal offense for
any person in interstate or foreign communication by means of a
telecommunication device to knowingly make, create or solicit and
initiate transmission of any communication which is obscene, lewd,
or indecent. This section was amended by the Communications Decency
Act of 1996 (CDA). The indecency part of the Act was challenged,
and on June 26, 1997, the United States Supreme Court held that the
CDA's "indecent transmission" and "patently offensively display"
provisions under Sections 223(a)(1)(B) and (a)(2) and 223(d)
abridge the freedom of speech protected by the First Amendment.
Reno v. ACLU, 521 U.S. 824 (1997). On July 30, 1997, the
United States District Court in Philadelphia signed a final order
permanently enjoining the Attorney General, the Department of
Justice, and all acting under the Attorney General's discretion and
control, from enforcing, prosecuting, investigating, or reviewing
any matter premised upon "indecent communications." The Department,
however, is not enjoined from enforcing, prosecuting,
investigating, or reviewing allegations of violations of the
Section based on prohibited obscenity or child pornography. See the
Criminal Resource Manual at 2465
This section was also amended by the Child Online Protection
Act of 1998 which was intended to restrict the dissemination of
"obscene" or "harmful to minors" materials over the World Wide Web
and provided for civil and criminal penalties. This statute was
likewise challenged in ACLU et al. v. Janet Reno, 31 F. Supp.2d 473
(E.D. Pa. 1999). The court has entered a stay of proceedings in the
case pending the appeal of the preliminary injunction entered by
the court.
For additional information related to the section 223
amendments, see the below-listed sections of the Criminal Resource
Manual | | | | | | | | | | | | | | | |