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Sending Child Pornography From Your Cell Phone to Your Computer is Not Necessarily a Crime

In the case of the United States versus Michael Grzybowicz, Mr. Grzybowicz was charged with, among other things, committing the federal crime of distributing child pornography.  That charge was based upon evidence that four pictures of the vagina of a two-year-old girl had been discovered on Grzybowicz’ cell phone and that those pictures had been sent from his cell phone to his own Yahoo email account.  At least two of those pictures were then downloaded onto Grzybowicz’ home computer.

Grzybowicz went to trial and was convicted of distributing child pornography.  But he appealed his conviction because:

1.  The prosecutor presented no evidence at trial that Grzybowicz had transferred the pictures to another person or even made them available to another person.

2.  Although links to a child pornography file-sharing website were found on his computer, no evidence was presented at trial that the pictures on that computer were stored in a shared folder that was accessible to others or that the pictures were ever uploaded to a publicly-accessible website.

The court of appeals agreed with Grzybowicz saying, “It is not enough that Grzybowicz sent the four pictures he took with his cell phone to his own email address. By doing that, he may have taken a step in the direction of distributing those images to others but the statute does not criminalize taking steps toward distribution or getting ready to distribute, it criminalizes distribution.”

Because the prosecutor did not present any evidence that Grzybowicz transferred child pornography to other people or allowed others access to his pictures, the court of appeals ruled that he did not commit the crime of distributing child pornography.

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