Wednesday, June 03, 2009

No Mistake of Age Defense for Child Porn Manufacture

US v. Malloy: Malloy and a friend twice had sex with a 14-year old girl, one of the times being videotaped by Malloy. He was charged and convicted of sexual exploitation of a minor for the purpose of producing a visual depiction and sentenced to the mandatory minimum sentence of 180 months.

On appeal, the Fourth Circuit affirmed both Malloy's conviction and sentence. As to his conviction, Malloy raised three arguments that the court rejected. First, he argued that a mistake of age defense must be read into section 2251(a) for it to pass First Amendment muster, as without it the statute is overbroad and chills protected speech. Second, he argued that because the indictment charged that he acted "knowingly," although that was not an element of the offense and thus not charged to the jury, the charge against him was constructively amended. Third, he argued that the statute as applied to him exceeded Congress's authority under the Commerce Clause. As to Malloy's sentence, the court rejected his argument that the mandatory minimum penalty violated the Eighth Amendment.

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