What if my client was just really good about backing up his hard drive and made copies of his digital child pornography that way? The Sixth Circuit, in United States v. McNerney (found here), recently ruled those copies count for the enhancement for number of images under U.S.S.G. 2G2.2(b)(7).
This opinion is a must-read for several reasons in addition to its holding.
In Footnote 2, the Court creates a useful vocabulary for discussing digital and non-digital images. Anything saved on a digital medium (hard drive, memory cards, internet) is a "digital image." The more traditional porn - on paper, on video cassette - is a "hard copy image." "Duplicate" images of either type are identical copies. "Unique" images of either type are those for which there is no copy. Simple, and yet no one has committed to it before. So now there's a chance we might all use the same language to describe images, which could clean up records significantly.
Mr. McNerney had all of his files backed up on a second hard drive. This doubled the number of digital images he possessed: for every image on his main computer, an exact copy existed on the second hard drive. McNerney argued only the unique images should count, not the duplicate images. The Court said even duplicates count, because their presence increases the likelihood of further distribution and because if the main drive fails, you still have a back-up.
Thumbnail images do not count towards the total.
The Court spends a good bit of time discussing the history of 2G2.2, in a way that does not bode well for arguments that the child pornography guidelines should be discounted because they are not based on empiracle research. Basically, "if Congress told the Guidelines Commission to do something, that makes it a legitimate enough guideline for us."
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