After Edward M.

Stulock was convicted on one count of knowingly receiving child pornography,

the district court1 sentenced him to a term of imprisonment of 72 months. Stulock appeals his
sentence, arguing that the court erred when it assessed enhancements under the sentencing gui
delines for use of a computer in connection with the transmission or advertisement of child por
nography, for obstruction of justice, and for possession of child pornography depicting violence.
We affirm.

In 1999, federal and state law enforcement officers raided a company engaged in distributing ch
ild pornography on the internet. Using a list of customer names and email addresses recovered
from that company, the agents emailed offers to sell pornographic materials to Stulock and man
y other individuals included in the list. Stulock responded to the offer with a request for a list o
f materials containing "mostly girls, age 7-14, hardcore." After receiving a list of videos, Stulock
mailed a personal check in payment for a videotape entitled "No Way," described as "Daddy fuc
ks 10 year old daughter." Federal agents made a controlled delivery of the tape and shortly ther
eafter executed a search warrant. During the search of Stulock's home, the agents found the ta
pe hidden in a bedroom closet and seized a personal computer.

Examination of Stulock's computer revealed evidence of his involvement with child pornography.
Numerous images of children younger than 18 engaged in sexual acts were recovered from sev
eral locations on the computer. In addition, the web browser history indicated that Stulock had
visited several web sites having names associated with child pornography, including www.hairless
-lolita.com, www.preteenlinks.com, www.littlepussy.com, www.peachfuz.com, and www.lolitahardcore
.com.

The agent who examined the computer explained to the district court that when a computer file
is deleted, the contents of the file are not irretrievably lost. The space occupied by the file is fl
agged as available, and until new data is stored in that location the deleted file can be recover
ed using an undelete tool. In addition to the contents of the file, information about when the fi
le was created, last modified, and last accessed can be recovered. Thousands of previously delet
ed files were recovered from the temp directory on Stulock's primary hard disk and from a sec
ondary hard disk designated by the computer as the F drive. The temp directory is where a pro
gram such as an image viewer or a word processor will store a duplicate of a file that is opene
d for use. Any changes are made to the copy and only applied to the original when the user s
aves the file. The copy in the temp directory is deleted when the user closes the file. More t ha
n 3,000 deleted files were recovered from the temp directory, including numerous examples of c
hild pornography. Stulock's computer was configured to use the temp directory as the location
where downloaded files that had been packaged in the ZIP file format would be stored. A ZIP f
ile can contain hundreds of images or other files, thus allowing a user to download many files
without having to save each one individually. Thus, the presence of an image in the temp direct
ory indicated that Stulock had either purposely downloaded the image in a ZIP file or had open
ed an image stored elsewhere on the disk using a viewer that created a temporary copy. Amon
g the 1,007 deleted files recovered from the F drive were three identified as portraying a minor
female in bondage. Three images were located in the internet browser cache. The browser cach
e contains images automatically stored by the computer when a web site is visited so that upo
n future visits the images need not be downloaded again, thereby improving the response time.
Unlike the other files recovered, the images in the browser cache had not been deleted and th
en recovered.

Stulock was charged with knowingly receiving child pornography in violation of 18 U.S.C. § 2252
A(a) (2) and knowingly possessing child pornography in violation of § 2252A(a) (5) (B). After a b
ench trial, Stulock was convicted of knowingly receiving the child pornography videotape, but he
was acquitted on the charge of knowingly possessing child pornography. The possession charge
specified only the images found in the browser cache. The district court explained that one ca
nnot be guilty of possession for simply having viewed an image on a web site, thereby causing
the image to be automatically stored in the browser's cache, without having purposely saved or
downloaded the image.

In sentencing guidelines cases, we review the district court's findings of fact for clear error and i
ts interpretation of the guidelines and their application to the facts de novo. United States v. H
unt, 171 F.3d 1192, 1195-96 (8th Cir. 1999). The district court applied three sentencing enhanceme
nts resulting in a combined increase of 8 levels. Stulock appeals the application of each of thes
e enhancements.

First, Stulock argues that the enhancement for use of a computer in connection with the transm
ission or advertisement of child pornography was improper because his use of a computer was
peripheral to his receipt of a video in the mail. U.S.S.G. § 2G2.2(b) (5) provides for a two -level
enhancement " [i]f a computer was used for the transmission of the material or a notice or adv
ertisement of the material." Stulock argues that the enhancement does not apply because he us
ed his computer to receive rather than to send a "notice or advertisement." We find the analysi
s in United States v. Richardson persuasive. 238 F.3d 837 (7th Cir.), cert. denied, 532 U.S. 1057,
121 S. Ct. 2206, 149 L. Ed. 2d 1035 (2001). The Richardson court noted that the guidelines provi
de increased punishment for use of the internet in the child pornography trade because the inc
reased efficiency and anonymity make both senders and receivers of this material more dangero
us. Id. at 842. Section 2G2.2(b) (5) is not limited to computer use by the defendant, as is the s
ection governing possession of child pornography, § 2G2.4(b) (3). Id. at 841. Like the Richardson
court, we conclude that § 2G2.2(b) (5) applies to a defendant who receives child pornography t
hat he received a notice or advertisement of through his use of a computer as well as to a def
endant who uses a computer to advertise child pornography.

An undercover officer used a computer to transmit an advertisement of the material to Stulock.

Stulock received this advertisement via computer. All details of the transaction were negotiated t
hrough email. Only the final payment and delivery were, of necessity, accomplished through the
postal service. Accordingly, we find no error in the district court's findings of fact or its applicati
on of § 2G2.2(b) (5).

Second, Stulock argues that the district court erred in applying a two-level enhancement for obs
truction of justice. An obstruction of justice enhancement for perjury is a finding of fact that we
review for clear error. Hunt, 171 F.3d at 1196. A defendant who willfully gives false testimony un
der oath regarding a material matter has committed perjury and is subject to a § 3C1.1 enhance
ment. United States v. Titlbach, 300 F.3d 919, 923-24 (8th Cir. 2002). After a review of the evide
nce, the district court must make an "independent finding, by a preponderance of the evidence,
of perjury." United States v. Thomas, 93 F.3d 479, 489 (8th Cir. 1996). The district court found t
hat Stulock perjured himself when he testified under oath that although he had ordered child p
ornography, specifically asking for girls aged 7 to 14, he did not believe that he would receive c
hild pornography. Stulock testified that in his experience searching the internet for pornography,
his use of terms describing minor females often returned the material he sought, material involvi
ng younger adult women and somewhat older men. Characterizing Stulock's answers as "clearly
phony," the district court stated specifically: "I believe the defendant was committing perjury." Gi
ven the weight of evidence against Stulock and the district court's superior position from which
to judge credibility, we hold that the district court did not clearly err in finding that Stulock had
committed perjury.
Finally, the district court applied a four-level relevant conduct enhancement pursuant to U.S.S.G.
§§ 1B1.3 and 2G2.2(b) (3) based upon Stulock's possession of child pornography images depictin
g violence. Among the thousands of images of child pornography recovered from Stulock's com
puter, three of the files recovered portrayed a minor female in bondage held against a nude m
ale who was holding a whip. Stulock does not dispute that these images are violent within the
scope of § 2G2.2(b) (3). He contends that his possession of these images was not in the same
course of conduct as his receipt of the video, the offense of which he was convicted. The Seve
nth Circuit considered and rejected a similar challenge in United States v. Ellison, 113 F.3d 77 (7t
h Cir. 1997), in which the defendant's sentence for receipt of a video containing child pornograp
hy was enhanced due to his contemporaneous possession of magazines containing violent child
pornography. "Specific offense characteristics" as used in § 2G2.2(b) include "all acts and omissio
ns committed ... by the defendant ... that occurred during the commission of the offense of con
viction." U.S.S.G. § 1B1.3(a); Ellison, 113 F.3d at 83.

The agent who examined Stulock's computer testified that the files he recovered had modificatio
n dates between August 2000 and November 2000. Stulock received the initial email from the u
ndercover agent in July 2000 and placed his order for the videotape on November 22, 2000. St
ulock presented evidence regarding aggressive internet porn sites that use pop-ups and other te
chniques to place material on a computer without the user's knowledge or consent. Although th
is could account for some of the material, viewing the evidence as a whole, we cannot say it w
as clear error to find that Stulock's possession of images containing violent child pornography w
as an act committed during his search for and receipt of the child pornography video that was
the basis of the charged offense.

Affirmed.

Accused _____JJ_______ herein is charged for committing acts prohibited under the Anti-Child Por
nography Act as follows:

Section 4. Unlawful or Prohibited Acts. – It shall be unlawful for any person:

xxx
 (b) To produce, direct, manufacture or create any form of child pornography;

xxx

(j) To willfully access any form of child pornography;

xxx

(l) To possess any form of child pornography. [Emphasis and Underscoring supplied]

It is humbly submitted that all the evidence of the PEOPLE has proven that the accused in viola
tion of RA 9775 created and stored in his cellphone pornographic photographs of him. He had
also, on several occasions exchanged pornographic photographs of him to other person identifie
d by the accused as his girlfriend. A perusal of the evidence shows that the photographs in the
cellphone of the accused contain images of him in his underwear and numerous other pictures
of him holding his male genitalia.

It is noteworthy that the subject of said photographs is the accused himself who is only sevente
en years old. To be charged under this prohibited act, it is necessary that the per son in the ph
otographs portrays that of a “CHILD”. Under RA 9775 a child is defined in different settings.

Section 3. Definition of Terms. –

(a) “Child” refers to a person below eighteen (18) years of age or over, but is unable to fully ta
ke care of himself/herself from abuse, neglect, cruelty, exploitation or discrimination because of
a physical or mental disability or condition.
For the purpose of this Act, a child shall also refer to:

(1) a person regardless of age who is presented, depicted or portrayed as a child as defined he
rein; and

(2) computer-generated, digitally or manually crafted images or graphics of a person who is rep
resented or who is made to appear to be a child as defined herein. [Emphasis and Underscorin
g supplied]

It is without doubt that the accused is a child in contemplation of the law. In this regard, accus
ed is without doubt guilty for creating said sexually explicit photographs in violation of the law.

Willfully accessing any form of child pornography is a punishable act.

During the preliminary investigation, the accused himself admitted that he has engaged in “Sexti
ng” with his girlfriend and said photographs was created by him for the purpose of sending it t
o his girlfriend. “Sexting” refers to sending a text message with pictures of children or teens tha
t are inappropriate, naked or engaged in sex acts.

In many jurisdictions, sexting is serious and considered a crime. The term was defined by the co
urt in United States v. Broxmeyer, as the exchange of sexually explicit text messages, including p
hotographs, via cell phone. (2010 U.S. App. LEXIS 16032 (2d Cir. 2010)).

In our Jurisdiction, sexting which involves child pornography can be found to include under the
definition of “Explicit Sexual Activity”

(c) “Explicit Sexual Activity” includes actual or simulated –

xxxx
(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or

(6) use of any object or instrument for lascivious acts. [Emphasis and Underscoring supplied]

Undeniably, accused ____JJ____ had an access to child pornography by knowingly and wittingly in
volving himself in the act of “sexting” with his girlfriend. RA 9775 seeks to prevent the danger t
hat everything that sent over the Internet or a cell phone can be shared with the entire world,
so it is important that sending sexually explicit messages and pictures should be deterred and fr
owned upon.

In an American Jurisprudence, Teenagers’ texting sexually explicit photographs of themselves, or

of their friends or partners, can be charged with distribution of child pornography and those wh
o receive the images can be charged with possession of child pornography. (United States v. Br
oxmeyer)¹

It is very clear that Possession of any form of Child Pornographic material per se is an act puni
shable under RA 9775

RA 9775 enable criminal prosecution of teenagers above (or below) the age of consent who me
rely possess images of themselves and/or of their partner taken with consent. It should be note
d that mere possession of the materials is a crime in and of itself, similar to possession of proh
ibited drugs. RA 9775 prohibits possession of child pornographic materials because the demand
for these materials encourages its production, which necessarily involves the abuse of children. K
nowingly possessing an item requires a voluntary act on the part of the accused giving him do
minion and control over the items.
From the obtained evidence, the prosecution established the seriousness of the offence of posse
ssion by the accused under RA 9775 as the following factors² were considered:

1.) The nature and content of the pornographic material and the gravity of the sexual activity p
ortrayed.

The clear images showing the accused provocatively holding his erect penis and sending those i
mages to his girlfriend through text messaging can be regarded as harmful because it involves t
he degradation and exploitation of children especially if such images will be accidentally discover
ed by other person and the distribution is unavoidable.

2.) The number of images or items of materials possessed.

One of the aggravating circumstances which the prosecution sees fit to discuss is the quantity o
f the materials which the accused possessed in his cellphone which was seized by the authoritie
s and was presented as evidence. The pornographic images and sexually provocative messages s
eized from the accused contained a total of twenty (20) pornographic images of him holding or
showing his male genitalia and a total of 1020 sexually explicit text messages.

3.) The duration of possession.

It can be gleaned from the evidence that the dates of the images taken on the accused cellpho
ne were stored by him in that device for one year already. The length of possession is a releva
nt factor in Anti-Child Pornography cases as it would determine the voluntary act of the accuse
d to retain or dispose said images³. The period of one year is, by this time, apparent evidence
that the accused has intent to possess such items otherwise he would have disposed it.

4.) Whether possession involves the risk of accidental discovery and distribution of other persons
.
The risk of accidental discovery of the sexually explicit images is high in this particular case sinc
e the accused did not even bother to put a protective code or password on his cellphone so t
hat the law enforcement officers who conducted the search and seizure operation on the accus
ed, was able to open and discover the images in his cellphone.

It is quite apparent that several of these factors are present in the instant case. Hence, the child
pornographic materials in possession of the accused are a prima facie evidence of his violation
of RA 9775 or the Anti-Child Pornography Act.

There was a lawful and reasonable search and seizure operation by law enforcement authorities.

The discussion on the regularity of the search and arrest made by the lawful enforcement office
r is important since the right to privacy of the accused might be raised by the defense. The Su
preme Court in one case said “that the right to privacy is not unqualified.” The Supreme Court
cites the case of Nogales v. People which involved the destruction of pornographic materials fou
nd in the computer hardware of one company. In that case, “the Court weighed the property ri
ghts of individuals against the public welfare. Private property, if containing pornographic materi
als, may be forfeited or destroyed.” The Court says that “engaging in sexual acts privately throu
gh internet connection, perceived by some as a right, has to be balanced with the mandate of
the State to eradicate white slavery and the exploitation of women.” As contained in a US SC r
uling, privacy is categorized into two: decisional privacy and informational privacy. Decisional priv
acy “involves the right to independence in making certain important decisions,” while information
al privacy “refers to the interest in avoiding disclosure of personal matters.”

Finally, the search warrant used to seize the accused cellphone is supported by requisite probab
le cause. When probable cause is present, any evidence taken as a result of that seizure is allo
wed and can be used at trial. The search warrant used is sufficiently specific which allowed the
police to seize the cellphone of the accused.

Final Statement
The foregoing discussion shows that the prosecution has presented clear and convincing evidenc
e proving with absolute certainty the commission of prohibited acts in violation of the Anti-Child
Pornography Act (RA 9775) by accused ___JJ___ in the instant case.

ARGUMENTS` OF THE DEFENSE

The problem in this particular case is that the accused herein is the victim of the crime he has
allegedly committed as defined under RA 9775 or the Anti-Child Pornography Act. It will be imp
ossible for a rapist to rape himself, a killer to kill himself and a robber to rob himself and beco
me the victim of their own crime.

This is the crux of the first cited error of the prosecution.

RA 9775 or the Anti-Child Pornography Act aims to guarantee the fundamental rights of every
child from all forms of neglect, cruelty and other conditions prejudicial to his/her development.
The institution of this charge against the accused, who is seventeen years old, a minor in conte
mplation of the law, runs counter to the basic intention of the law. It should be noted that the
alleged pornographic materials seized contains images of the accused. It is therefore absurd that
the victim sought to be protected by RA 9775 is the same person accused in the crime allege
d herein.

None of this is a crime. On the contrary, the Constitution grants every citizen, even minors the
right to fantasize and take photographs of them about whatever and whenever they like, free fr
om government interference5­. And this country does not convict people based on the governm
ent’s view that their fantasies are bad, or its speculation that someday a person might act on hi
s fantasies and commit a crime.

The charges against the accused, if allowed to stand, threatens these fundamental principles.
Moreover, no evidence showed—the prosecution did not even allege—that the accused intends
to sell, distribute or use such photographs of him for his pecuniary benefit.

It is noteworthy to stress that the Anti-Child Pornography Act intends to punish “any persons w
ho exploits and abuse a child with the intention to sell or distribute such materials for pecuniar
y benefit. Such instances are absent in the case at hand.

The risk that an innocent man, a child at that, sits in prison based simply on his lurid explorativ
e acts—is too great to allow the charges to stand.

The Court should dismiss the Case on the Ground that the Charges are Baseless, Suggestive an
d Speculative.

All of the prosecution’s arguments were grossly improper in numerous respects:

First, the prosecution’s arguments improperly suggested that the court needed to convict the ac
cused to stop him from taking sexually explicit photographs of him, because he might decide to
use and distribute said pornographic materials for his pecuniary benefit. The prosecution fails t
o see the fact that such speculation is prejudicial to the interest of the Child. Under our crimina
l justice system, prosecutors may not ask the court to convict people based on fear about what
they might do in the future.

Second, the prosecution argue that simple possession of child pornography contribute to the se
xual abuse of children by increasing the demand for such images. However, there is lack of em
pirical evidence to support this claim and the production of child pornography may not be com
mercially motivated. While calling for more research, the United Nations Office on Drugs and Cri
mes found that “in most cases, the images are generated as a result of the abuse, rather than
the abuse being perpetuated for the purpose of selling images 6.”
There is no abuse to speak of in this case. Nowhere and nothing in the evidence proves that c
ruelty and abuse is inflicted upon the child-victim who is also being unfairly accused by the pro
secution.

Third, the prosecution fails to recognize that the accused herein, as a child, needs supervision b
ut not prosecution from criminal charges. The fact is that nearly all teens have mobile phones
with cameras. And the adolescent brain is known to make impulsive and bad decisions. With th
e means so readily available, mistakes in judgment will be made in an instant, and they are diffi
cult to undo, and have significant social and legal implications. Peer pressure no doubt can play
a significant role in teen sexting cases, as well. And misplaced trust can result in what was sup
posed to be a private and personal picture being widely circulated.

But most of these circumstances, though regrettable and dangerous, should not come with felon
y criminal penalties. Courts must ponder applying criminal penalties to youth who may have me
rely had a moment of poor judgment.

Finally, the sexually explicit photographs which the prosecution based their arguments do not co
ntain any lascivious exhibition or exposure of his male genitalia as opposed to what they claim.
This only proves the intention of the prosecution to charge the child-victim of baseless accusatio
ns.

The charges is unmeritorious for being inconsistent with RA 9775 and the Juvenile Justice Syste
m’s Goal of Protection and Rehabilitation

In our Jurisdiction, there is no jurisprudence to support the claim of the prosecution that minors
involve in “Sexting” can be charged with distribution of child pornography and those who recei
ve the images can be charged with possession of child pornography.

Sexting prosecutions are inconsistent with the juvenile justice system’s goal of rehabilitation and
are an abuse of prosecutorial discretion that could result in severe consequences, including yout
h being mandated to register as sex offenders.
In Miller v Skumanick, an American jurisprudence, the court granted temporary restraining order
preventing prosecutor from filing child pornography charges against teens alleged to have sexte
d. Plaintiffs’ in this case argued that prosecution would amount to retaliation against their childr
en’s right to free expression, and the parents’ substantive due process right to direct the upbrin
ging of their children.

Final Statement

Ergo, by this alone the instant criminal case charged against the accused must fail.

The Rulings of the Court

“It is Legitimate, it is argued, to mark society’s abhorrence of child sexual abuse by

a sentence which expresses strong condemnation of it in the same way that denunciation is ap
propriate in cases where the offenders directly abuse children”

Kate Warner 9

Section 4, (b)(j)(l) provides:

Section 4. Unlawful or Prohibited Acts. – It shall be unlawful for any person:

xxx

(b) To produce, direct, manufacture or create any form of child pornography;

xxx

(j) To willfully access any form of child pornography;

xxx

(l) To possess any form of child pornography. [Emphasis and Underscoring supplied]

The prosecution contend that the accused allegedly committed the following acts of Section 4(a)
(j)(l) of RA 9775 or the Anti-Child Pornography Act of 2009. Several evidences containing photo
graphs of the accused while in his underwear and holding his male genitalia was presented in
Court by the prosecution.

The defense, on the other hand, argued that the prosecution failed to recognize the fact that t
he accused herein is the same child-victim which the law aims to protect. And that the institutio
n of these charges against the accused runs counter to the objective of RA 9775 and the Juven
ile Justice System.

The Court has in a way found the case meritorious.

Although child pornography is a very real problem in the Philippines, it is seldom recognized. Al
though cases of child pornography have been reported in the Philippines, sources on this are sc
arcely available. A quick review of the available literature will only yield news reports, internal re
ports from government and non-government agencies on cases they have handled, and a few a
cademic studies on child pornography. It is only proper that child pornography should be addre
ssed through legal means because of the pernicious psychological effects that pornographic expl
oitation brings to children.

This court examined the intention of the law (RA 9775), which is as follows:
Section 2. Declaration of Policy. – The State recognizes the vital role of the youth in nation buil
ding and shall promote and protect their physical, moral, spiritual, intellectual, emotional, psychol
ogical and social well-being. Towards this end, the State shall:

(a) Guarantee the fundamental rights of every child from all forms of neglect, cruelty and other
conditions prejudicial to his/her development;

(b) Protect every child from all forms of exploitation and abuse including, but not limited to:

1) the use of a child in pornographic performances and materials; and

(2) the inducement or coercion of a child to engage or be involved in pornography through wh

atever means; xxx [Emphasis and Underscoring supplied]

The risk that an innocent man, a child at that, sits in prison based simply on his lurid explorativ
e acts—is too great to allow the charges to stand. Notably, we agree with the defendant in this
particular argument. In other jurisdictions, a minor involved in sexting is subjected to a juvenile
court and a wide range of potential penalties that may apply. The court, therefore, consider the
act of the accused as a mere misdemeanor offense or a petty offense.

Consistent also with the policy of the state juvenile justice system which provides that:

Sec. 2. Declaration of State Policy. – The following State policies shall be observed at all times:

(a) xxx
(b) The State shall protect the best interests of the child through measures that will ensure the
observance of international standards of child protection, especially those to which the Philippine
s is a party. Proceedings before any authority shall be conducted in the best interest of the chil
d and in a manner which allows the child to participate and to express himself/herself freely. Th
e participation of children in the program and policy formulation and implementation related to
juvenile justice and welfare shall be ensured by the concerned government agency.

(c) xxx

(d) Pursuant to Article 40 of the United Nations Convention on the Rights of the Child, the Stat
e recognizes the right of every child alleged as, accused of, adjudged, or recognized as having
infringed the penal law to be treated in a manner consistent with the promotion of the child’s s
ense of dignity and worth, taking into account the child’s age and desirability of promoting his/
her reintegration. Whenever appropriate and desirable, the State shall adopt measures for dealin
g with such children without resorting to judicial proceedings, providing that human rights and l
egal safeguards are fully respected. It shall ensure that children are dealt with in a manner appr
opriate to their well-being by providing for, among others, a variety of disposition measures suc
h as care, guidance and supervision orders, counseling, probation, foster care, education and vo
cational training programs and other alternatives to institutional care. Xxx [Emphasis and Undersc
oring supplied]

Further, the Court DECLARES:

Premises considered, the court is compelled to consider the minority and the gravity of the offe
nse committed and hereby imposed upon the defendant the following:

Warning. The second offense that will be committed by the defendant will eventually lead to a
higher penalty
Community service and counseling. The defendant is hereby ordered by the court to perform c
ommunity service and attend individual or family therapy.