CA1: First bends a bit to affirm a child pr0n conviction

US v. Wilder, No. 06-2213.  This is a child pr0n conviction.  The first issue is whether the search warrant affidavit was based on stale evidence.  The District Court said it wasn’t stale, even though the affidavit only showed that he downloaded pr0n.  But, I guess everyone gets to “infer” that if one downloads things, they keep them. 

Applying United States v. Rodriguez-Pacheco, 475 F.3d 434, 439 (1st Cir. 2007) (our coverage here), the First says the government doesn’t need expert testimony to provide that “the children were real” and not computer-generated.  Judge Stahl disagrees with this part of the opinion, and says that the First is ignoring Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), and says that “The logic of adopting this rather odd assumption about the dynamics of the child pornography market as a rationale for concluding that the child in any given picture is unlikely to be virtual rather than real is questionable at best.”  But, Stahl is missing the point: the First WANTS to get caught up in the child pr0n hysteria.  People like it that way.  Whatever the case, Stahl figures that there was expert testimony on whether they were real children.

Then the First says it is up to the jury to determine whether the pictures actually depict “sexually explicit conduct.”  However, it is unclear what the minimum the government would need to introduce would be.

Regarding the “knowing” element of “receipt” of pr0n, the First says that “there was ample evidence of what he was looking for” and distinguishes it from case where people get a big ol’ barrel of pr0n (some legal and some illegal).

Regarding the “knowing” element of “possession” the First jumps over the issue of whether he preserved his argument and concludes that based on the “opinion” testimony of two experts he “knowingly” saved pictures into a certain place.