As a child pornography criminal defense attorney, I was interested to see an article about a child porn defendant who asked the prosecution for his computer and other equipment to be returned. The man, Joseph Schesso of Portland, is accused of possessing, distributing and making child pornography. According to the Seattle Post-Intelligencer, Schesso was indicted in Washington last week after a tip from European investigators eventually led Washington police to his home and his collection of child pornography. Through his attorney, he has asked for the release of several laptops and what he calls a “super computer” seized in the raid, even though his ability to use computers is restricted while he waits for his trial. The newspaper did not report why Schesso wants the computers.
According to the article, German police contacted U.S. Immigration and Customs Enforcement in late 2008 to report Schesso as a distributor of child pornography. ICE agents eventually raided Schesso’s home while he was out and seized computer equipment containing more than 500 videos and 3,100 images of child pornography. His wife told investigators that Schisso had a long-term “problem” with child pornography. Schisso has denied ever molesting a child, but agents later found deleted photos on his digital camera suggesting that was not true. In later interviews, the girl said he had sexually assaulted her twice. If convicted of the current charges, he faces a mandatory minimum of 15 years in prison.
What interested me in this story, as a cyber crime criminal defense lawyer, was the request for the computers back. Most people don’t realize this, but federal law gives the government the right to permanently seize property related to child pornography offenses. Under the law, the government can keep the pornography itself; anything purchased with profits from the illegal activity; and any property “used or intended to be used” to commit the offense. Thus, Schesso’s computers are almost certainly subject to the forfeiture law because they were likely used to commit the child pornography offenses he’s accused of. It doesn’t matter whether the property was also used by Schesso and his wife for harmless activities like doing their taxes or taking pictures of family events; the government is free to take it. In fact, if Schesso happens to own his home, the government may also be able to take that. This can be defended in court, but it’s difficult to do — which is why it’s vital to have a cyber crime criminal defense attorney on your side as soon as possible.