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A defendant’s guilty plea to a charge of receiving child pornography has been vacated because he was not asked whether he knew the images he received were of actual children rather than simulated child pornography. U.S. District Judge Robert P. Patterson of the Southern District of New York had accepted defendant Brian Reilly’s plea on July 17 to one count of knowingly receiving child pornography. But two weeks later, the judge called the parties to a conference and expressed his doubts that Reilly had properly admitted to each element of the crime. The judge referred to the U.S. Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, issued on April 16, and questioned whether Reilly had to admit that the computer images he received depicted actual minors engaged in sexually explicit conduct, as opposed to virtual child pornography that only appears to show minors. Judge Patterson said he had not inquired whether or not Reilly knew that the images were real, nor had he ascertained whether Reilly knew that the people depicted were actual minors rather than computer-generated images of children or adult actors portraying children. Following the conference, Reilly moved to vacate the plea, and the judge agreed last Friday in U.S. v. Brian Reilly, 01 Cr. 1114, holding “since Reilly did not allocute to this essential element of the charge in the indictment, the court is satisfied that Reilly did not fully understand the crime to which he pled.” The judge said the U.S. Supreme Court’s Free Speech decision, as well as its 1994 ruling in U.S. v. X-Citement Video, 513 U.S. 64, required a defendant in a prosecution for receiving child pornography to admit specifically that he knew the visual depictions were of actual minors. In the Free Speech decision, the Court rejected the government’s efforts to restrict “virtual child pornography” in the Child Pornography Prevention Act, Judge Patterson said, noting the definitions in the statute, 18 U.S.C. �� 2256(8) were “not sufficiently related to the exploitation of real children.” The X-Citement Video ruling held that the term “knowingly” in the statute requires proof the defendant knew real minors were engaged in sexually explicit conduct, the judge said. Patterson rejected the prosecution’s contention that the government had to establish only the defendant’s reckless disregard of the obvious, and that it need not prove he knew the actual age of the minors. “[A] defendant in possession of materials containing visual depictions of real minors engaging in sexually explicit conduct must know that real minors were the subject of the visual depiction,” the judge concluded. Since Reilly had not acknowledged that he knew the computer images he received were of actual children, the guilty plea must be vacated, the judge said. Reilly was represented by Jason L. Solotaroff. Southern District Assistant U.S. Attorney Deirdre A. McEnvoy handled the prosecution. A spokesman for the office of U.S. Attorney James B. Comey said prosecutors were reviewing the judge’s opinion and had not yet determined their next step.

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