Friday, March 30, 2012

7th Cir. reverses conviction for receiving CP, requires knowledge requirement in jury instructions

In United States v. Rogers, 2012 U.S. App. Lexis 6382 (7th Cir. 2012), the Seventh Circuit reversed a conviction for receiving child pornography because the jury instructions omitted the requirement of knowledge. Rogers had been convicted on several counts after engaging in chat room conversations with a 14-year-old where nude photographs of the child were sent to Rogers. Additionally, in a conversation with a second child, Rogers sent an obscene image of himself to the 13-year-old.

On appeal, Rogers argued that requirements of knowledge were omitted from jury instructions on two of the counts. The appellate court found that in Count 4 (enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct), it was not necessary for him to have knowledge that the minor was actually a minor.

However, with Count 3 (knowingly receiving child pornography), the omission of a knowledge requirement was in error. The review was done for plain error as the defense did not object to the instruction. The court held that in order "to convict an individual for receiving child pornography, the Government must prove that the defendant knew the age of the performer." This error "affected Rogers' substantial rights," requiring reversal.

Another issue the court addressed was whether a picture of an erect penis with a hand holding it should be considered obscene. Rogers argued that it "was anatomical" and "not sexual in nature." However, the court found it to be one of masturbation and sexual conduct and following the standard set in Miller v. California (413 U.S. 15, 24 (1973)), it should be classified as obscene.


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