United States of America, Plaintiff-Appellee/cross-Appellant v. John Patrick Farrelly, Defendant-Appellant/cross-Appellee (2004)

United States v. Family, 389 F.3d 649, 654 (6th Cir.2004), abrogated on other grounds by United States v. Williams, 411 F.3d 675 , 678 n. 1 (6th Cir.2005).

Because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility[,] the determination of the sentencing judge is entitled to great deference on review.” United States v. 9 Farrelly, 389 F.3d 649, 656 (6th Cir. 2004), abrogated on other grounds by United States v. Williams, 411 F.3d 675 , 677 n.1 (6th Cir. 2005).

Instead, as we held in United States v. Farrelly, the government is generally allowed to present the images, and then must simply put on proof that they depict real, and not virtual, children. 389 F.3d 649, 653 (6th Cir.2004) (“[T]he Government has the burden of showing that the images in this case were of actual children.

See United States v. Salcido, 506 F.3d 729, 733-34 (9th Cir.2007) (per curiam) (“We agree with every other circuit that has ruled on the issue that expert testimony is not required for the government to establish that the images depicted an actual minor,’’ and "there seems to be general agreement among the circuits that pornographic images themselves are sufficient to prove the depiction of actual minors.”); United States v. Rodriguez-Pacheco, 475 F.3d 434, 438-39 (1st Cir.2…

See Frabizio, 445 F. Supp. 2d at 156-57 . 10 No. 08-2515 claim that the government must produce evidence extrinsic to the pictures themselves); United States v. Farrelly, 389 F.3d 649, 654 (6th Cir. 2004) (“The question of whether the images are virtual or real is one of fact, to be determined by evidence about which argument can be made to the jury.”), abrogated on other grounds by United States v. Williams, 411 F.3d 675 , 677 n.1 (6th Cir. 2005); United States v. Slanina, …

See United States v. Salcido, 506 F.3d 729, 733-34 (9th Cir.2007) (per curiam) (“We agree with every other circuit that has ruled on the issue that expert testimony is not required for the government to establish that the images depicted an actual minor.”); United States v. Irving, 452 F.3d 110, 120-22 (2d Cir.2006) (rejecting appellant’s claim that the government must produce evidence extrinsic to the pictures themselves); United States v. Farrelly, 389 F.3d 649, 654 (6th C…

United States v. Farrelly, 389 F.3d 649, 655 (6th Cir.2004), superseded on other grounds, Sentencing Commission deletion of USSG § 2G2.4, as stated in United States v. Williams, 411 F.3d 675 , 678 n. 1 (6th Cir.2005).

Id. at 657 (“the obvious intent of the Guidelines however is to punish less se *464 verely for possession than for trafficking”).

United States v. Farrelly, 389 F.3d 649, 656 (6th Cir. 2004).

United States v. Farrelly, 389 F.3d 649, 656 (6th Cir.2004).

United States v. Farrelly, 389 F.3d 649, 656 (6th Cir.2004).

In U.S. v. Farrelly, 389 F.3d 649, 657-61 (6th Cir.2004), this court determined that in cases where a defendant only possesses child pornography, but does not transmit it, district courts must use U.S.S.G. § 2G2.4, rather than U.S.S.G. § 2G2.2.

In U.S. v. Farrelley, 389 F.3d 649, 657-61 (6th Cir. 2004), this court determined that in cases where a defendant only possesses child pornography, but does not transmit it, district courts must use U.S.S.G. § 2G2.4, rather than U.S.S.G. § 2G2.2.

Padgett v. United States, 302 F.Supp.2d 593, 598-600 (D.S.C.2004) (finding that language of providence inquiry established actual nature of children and that, by appellate court's own review, photos were of actual children); United States v. Slanina, 359 F.3d 356, 357 (5th Cir.2004) (stating that the "Government was not required to present any additional evidence or expert testimony ... to show that the images downloaded ... depicted real children, and not virtual children”)…

Padgett v. United States, 302 F.Supp.2d 593, 598-600 (D.S.C.2004)(finding that language of providence inquiry established actual nature of children and that, by appellate court’s own review, photos were of actual children); United States v. Slanina, 359 F.3d 356, 357 (5th Cir.2004) (stating that the “Government was not required to present any additional evidence or expert testimony ... to show that the images downloaded ... depicted real children, and not virtual children”);…

Id. at 483 (citing United States v. Farrelly, 389 F.3d 649, 653 (6th Cir.2004), superseded on other grounds as stated in United *979 States v. Williams, 411 F.3d 675 , 678 n. 1 (6th Cir.2005)).

See Part III.A, supra; cf. United States v. Davenport, 519 F.3d 940 (9th Cir.2008) (“[Simultaneous conviction for both receipt and possession of [the same] child pornography violates the Fifth Amendment’s prohibition on double jeopardy”; receipt and possession are multiplicitous); United States v. Kamen, 491 F.Supp.2d 142, 152 (D.Mass.2007) (establishing that possession is a lesser included offense of receipt of child pornography as a matter of law); cf. United States v. Far…

United States v. Farrelly, 389 F.3d 649, 653-54 (6th Cir. 2004) (footnote omitted). -7- On the other hand, there will certainly be some cases in which it will not be such a simple matter for the jury to determine if the material contains an actual minor.

The Fifth, Sixth, and Tenth Circuits agree that Free Speech Coalition does not lay down “the absolute requirement that, absent direct evidence of identity, expert testimony is required to prove that the prohibited images are of real, not virtual, children.” United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.2003); see United States v. Family, 389 F.3d 649, 653-54 (6th Cir. 2004); United States v. Slanina, 359 F.3d 356, 357 (5th Cir.2004) (per curiam).

See United States v. Farrelly, 389 F.3d 649, 653 (6th Cir.2004) (reasoning that this is a fair inference based on Ashcroft v. Free Speech Coalition, 535 U.S. 234 , 122 S.Ct. 1389 , 152 L.Ed.2d 403 (2002), which struck down provisions of the Child Pornography Prevention Act of 1996 as overbroad because they targeted sexually explicit images that appeared to depict minors but were not produced using real children), superseded by statute on other grounds as recognized in United…

The Fifth, Sixth, and Tenth Circuits agree that Free Speech Coalition does not lay down “the absolute requirement that, absent direct evidence of identity, expert testimony is required to prove that the prohibited images are of real, not virtual, children.” United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.2003); see United States v. Farrelly, 389 F.3d 649, 653-54 (6th Cir.2004); United States v. Slanina, 359 F.3d 356, 357 (5th Cir.2004) (per curiam).

The reasons given in the PSR fully support the district court’s sentencing of Hochschild under U.S.S.G. § 2A3.1, and we need not reach the question whether, as the district court held, § 2A3.2 in any event refers back to § 2A3.1 by cross-reference. 2 The first step in ascertaining the applicable guideline is to “refer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for the offense of conviction.” U.S.S.G. …

The reasons given in the PSR fully support the district court’s sentencing of Hochschild under U.S.S.G. § 2A3.1, and we need not reach the question whether, as the district court held, § 2A3.2 in any event refers back to § 2A3.1 by cross-reference.2 The first step in ascertaining the applicable guideline is to “refer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for the offense of conviction.” U.S.S.G. §…

See United States v. Farrelly, 389 F.3d 649, 652 (6th Cir. 2004) (consumer of child pornogra- phy should be sentenced under § 2.2G2.4); United States v. Davidson, 360 F.3d 1374, 1377 (11th Cir. 2004) (same).

See United States v. Farrelly, 389 F.3d 649, 652 (6th Cir.2004) (consumer of child pornography should be sentenced under § 2.2G2.4); United States v. Davidson, 360 F.3d 1374, 1377 (11th Cir.2004) (same).

See, e.g., United States v. Dea-ton, 328 F.3d 454, 455 (8th Cir.2003) (per curiam); United States v. Hall, 312 F.3d 1250, 1260 (11th Cir.2002); see also United States v. Farrelly, 389 F.3d 649, 653 (6th Cir.2004). 6 .

See United States v. Farrelly, 389 F.3d 649, 653 (6th Cir.2004) (testimony not challenged on appeal, but government expert witness provided opinion that pornographic images were of children under thirteen); United States v. Rayl, 270 F.3d 709, 714 (8th Cir.2001) (district court did not abuse its discretion in permitting well-qualified physician to testify as expert regarding the ages of children in pornographic photos, magazines and videos); United States v. Anderton, 136 F.…

See United States v. Farrely, 389 F.3d 649 (6th Cir.2004); United States v. Kimler, 335 F.3d 1132 (10th Cir.2003), cert. denied, 540 U.S. 1083 , 124 S.Ct. 945 , 157 L.Ed.2d 759 (2003); United States v. Richardson, 304 F.3d 1061 (11th Cir.2002), cert. denied, 537 U.S. 1138 , 123 S.Ct. 930 , 154 L.Ed.2d 832 (2003).

See United States v. Robinson, 669 F.3d 767 , 776 n. 2 (6th Cir.2012) (“We note that standing alone, the current statutory scheme makes no principled distinction between possessing and receiving child pornography, which can often times be virtually identical conduct, but nonetheless results in vastly different mandatory sentencing ranges.”); see also United States v. Farrelly, 389 F.3d 649, 657 (6th Cir.2004) (recognizing that “every possession necessarily involves a receipt…

Ashcroft does not lay down “the absolute requirement that, absent direct evidence of identity, expert testimony is required to prove that the prohibited images are of real, not virtual, children.” Kimler, 335 F.3d at 1142 ; see, also, United States v. Family (C.A.6, 2004), 389 F.3d 649, 653-654 ; Slanina, 359 F.3d at 357 ; Deaton, 328 F.3d at 455 . {¶ 52} These same courts also agree that juries are capable of distinguishing between real and virtual images without expert ass…

See United States v. Family, 389 F.3d 649, 654-55 (6th Cir.2004) *531 (Free Speech Coalition case did not impose a special or heightened evidentiary burden on the prosecution to prove that images are of real children; question is one of fact); United States v. Slanina, 359 F.3d 356, 357 (5th Cir.2004) (holding that the government was not required to present any additional evidence or expert testimony to meet its burden of showing that the images downloaded by defendant depic…

See United States v Farrelly, 389 F3d 649, 653 (CA 6, 2004).

See United States v. Farrelly, 389 F.3d at 655 and United States v. Kimler, 335 F.3d at 1142 . 35 State v. Meadows (1986), 28 Ohio St.3d 43 , syllabus. 36 Ashcroft v. The Free Speech Coalition, supra. 37 State v. Eichorn, 5th Dist.

See U.S. v. Farrelly, 389 F.3d 649 (6th Cir.2004); U.S. v. Rearden, 349 F.3d 608 (9th Cir.2003).

See United States v. Farrelly, 389 F.3d 649, 653-55 (6th Cir. 2004) (and cases cited therein).

See United States v. Farrelly , 389 F.3d 649, 653-55 (6th Cir. 2004) (and cases cited therein).

See United States v. Farrelly (C.A.6, 2004), 389 F.3d 649 ; United States v. Kimler (C.A.10, 2003), 335 F.3d 1132 , 1142 ; United States v. Hall (C.A.11, 2002), 312 F.3d 1250 , 1260 ; United States v. Deaton (C.A.8, 1999), 328 F.3d 454 , 455 . {¶ 26} We agree with the Circuit Courts of Appeal and conclude that "[j]uries are still capable of distinguishing between real and virtual images," Farrelly, 389 F.3d at 655 , and that expert testimony is not required to prove illicit …