U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

10th Cir. Upholds 100-Year Conviction for Child Pornography

Richard Franklin was convicted on federal child pornography charges, including advertisement or notice of child pornography. Franklin was a member of a file-sharing website called GigaTribe, which allowed him to approve other users as "friends," letting them into his "tribe."

Of course, his fellow tribe members wanted child pornography, which he supplied, leading to his conviction. On appeal, he contended that the evidence didn't support a conviction for "advertisement or notice" of pornography. He also claimed that his total sentence -- five consecutive sentences, totaling 100 years -- was unreasonable.

What Is Advertising?

So what is advertisement or notice, really? The prosecution claimed that making pornographic images available to his GigaTribe friends constituted advertisement and notice. Franklin, on the other hand, disputed this theory, contending that, because GigaTribe was a closed network, he hadn't made "impersonal and indiscriminate communications to the public."

After consulting one of the most ancient legal texts -- a dictionary -- the Tenth Circuit discovered that "notice" is pretty broad, encompassing "knowledge" or "attention." Franklin didn't dispute that, but claimed that advertising required a public component and that "advertising and notice" are part of the same series of words, meaning the court must interpret "notice" to require a public component, just like advertising.

Not Such a Harsh Penalty, After All

Yeah, not so much. Even assuming that "advertising" and "notice" require dissemination of information to the public, the Tenth Circuit said, "[t]he public consists of numerous groups," many of which might be exclusive, like the members of a wholesale club, or the audience of a basketball star's Facebook page. Even though these messages aren't directed at every person in the world, they're still directed at "the public."

Franklin made the unfortunate claim that his "friends" on GigaTribe were more like family members, not the public. The court wasn't interested in that argument, noting that his only connection to these friends was their shared interest in child pornography. "We do not view that connection like the bonds that connect family members," it said.

And what about his one hundred year sentence? Well, the sentence actually fell within the guideline range -- which actually calls for life imprisonment. Even acknowledging that the sentence was "harsh," the Tenth Circuit reiterated that a sentence's harshness doesn't raise the presumption of unreasonableness even when it's inside the guideline range.

And even though Franklin characterized his crimes as "run of the mill" child pornography, the court adamantly disagreed, noting that he had "downloaded hundreds of thousands of images containing child pornography," which undoubtedly caused stress, trauma, and anxiety to the children featured in them. All this, the court said, made his sentence well within the bounds of reason.

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