Diane Deft frequently views child pornography on her computer. She deletes every image that she views. Those deleted images remain in the cache of her computer. Police learn of Diane's proclivity to view child porn and obtain a search warrant for her computer. Evidence of child porn is found in the cache only. Can she be successfully prosecuted under the following statute:
§ 2252A. Certain activities relating to material constituting
or containing child pornography
(a) Any person who--(1) knowingly mails, or transports or ships in interstate or
foreign commerce by any means, including by computer, any child pornography;
(2) knowingly receives or distributes--
(A) any child pornography that has been mailed, or shipped or transported in
interstate or foreign commerce by any means, including by computer; or
(B) any material that contains child pornography that has been mailed, or
shipped or transported in interstate or foreign commerce by any means, including
by computer;
(3) knowingly reproduces any child pornography for distribution through the
mails, or in interstate or foreign commerce by any means, including by computer;
(4) either--
(A) in the special maritime and territorial jurisdiction of the United States,
or on any land or building owned by, leased to, or otherwise used by or under
the control of the United States Government, or in the Indian country (as
defined in section 1151), knowingly sells or possesses with the intent to sell
any child pornography; or
(B) knowingly sells or possesses with the intent to sell any child pornography
that has been mailed, or shipped or transported in interstate or foreign
commerce by any means, including by computer, or that was produced using
materials that have been mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer; or
(5) either--
(A) in the special maritime and territorial jurisdiction of the United States,
or on any land or building owned by, leased to, or otherwise used by or under
the control of the United States Government, or in the Indian country (as
defined in section 1151), knowingly possesses any book, magazine, periodical,
film, videotape, computer disk, or any other material that contains an image of
child pornography; or
(B) knowingly possesses any book, magazine, periodical, film, videotape,
computer disk, or any other material that contains an image of child pornography
that has been mailed, or shipped or transported in interstate or foreign
commerce by any means, including by computer, or that was produced using
materials that have been mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer,
shall be punished as provided in subsection (b).
(b)(1) Whoever violates, or attempts or conspires to violate, paragraphs [FN1]
(1), (2), (3), or (4) of subsection (a) shall be fined under this title or
imprisoned not more than 15 years, or both, but, if such person has a prior
conviction under this chapter, chapter 109A, chapter 117, or under the laws of
any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward, or the production, possession, receipt,
mailing, sale, distribution, shipment, or transportation of child pornography,
such person shall be fined under this title and imprisoned for not less than 5
years nor more than 30 years.
(2) Whoever violates, or attempts or conspires to violate, subsection (a)(5)
shall be fined under this title or imprisoned not more than 5 years, or both,
but, if such person has a prior conviction under this chapter, chapter 109A, or
chapter 117, or under the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor or ward, or the
production, possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, such person shall be fined under this title
and imprisoned for not less than 2 years nor more than 10 years.
(c) It shall be an affirmative defense to a charge of violating paragraphs (1),
(2), (3), or (4) of subsection (a) that--
(1) the alleged child pornography was produced using an actual person or persons
engaging in sexually explicit conduct;
(2) each such person was an adult at the time the material was produced; and
(3) the defendant did not advertise, promote, present, describe, or distribute
the material in such a manner as to convey the impression that it is or contains
a visual depiction of a minor engaging in sexually explicit conduct.
(d) Affirmative Defense.--It shall be an affirmative defense to a charge of
violating subsection (a)(5) that the defendant--
(1) possessed less than three images of child pornography; and
(2) promptly and in good faith, and without retaining or allowing any person,
other than a law enforcement agency, to access any image or copy thereof--
(A) took reasonable steps to destroy each such image; or
(B) reported the matter to a law enforcement agency and afforded that agency
access to each such image.
To see the relevant case, United States v. Tucker, click here.