State v. Zidel’s Empirical Analysis

Citation profile

6 federal appellate · 8 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 20 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “The reason for this is simple. The affirmative defense [available to defendants charged under § 2252A(a)(l), (2), (3)(A), (4) or (5) ]will be unavailable if the evidence shows that the image was produced, directly or indirectly, from the sexual abuse of a child. Thus, the affirmative defense is unavailable both for a “first generation” image that directly records the sexual abuse of a child and for a later generation image that uses such an image. In either situation, it cannot be said that “the alleged child pornography was not produced using any actual minor or minors.” By contrast, the morphing provision is explicitly aimed at the creation of a sexually explicit image using an innocent image of a child. Because many morphed images thus do not use, either directly or indirectly, a sexually explicit image of any child, it could be argued (incorrectly) by some that it does not involve any “use” of a child and fits within the affirmative defense. If such an argument were successful, it could defeat the entire point of the morphing provision. To eliminate any possible doubt on this issue, the morphing provision has been expressly excluded. Evidence in the record indicates that a photograph of the head of a well known juvenile, AC, was skillfully inserted onto the body of the nude boy so that the resulting depiction appears to be a picture of AC engaging in sexually explicit conduct with a knowing grin. Although there is no contention that the nude body actually is that of AC or”

   1 later decision quote this exact passage
   e.g. 599 F. Supp. 2d 306 - United States v. Hotaling

2. “First, in Bach , the defendant challenged his conviction “for receipt of child pornography under [18 U.S.C.] § 2252A(a)(2),” [400 F.3d] at 629 (emphasis added), not possession of child pornography, see 18 U.S.C. § 2252A(a)(5). A conviction under 18 U.S.C. § 2252A(a)(2) requires that a person “knowingly receive [ ] or distribute [ ] ... child pornography [or material that contains child pornography] that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.” 18 U.S.C. § 2252A(a)(2) (emphases added); see Bach, 400 F.3d at 630 . Since these pictures do not remain within the privacy of a person’s home, but instead disseminate into commerce, the interests of real children arguably may be implicated in such cases. Here, the defendant was not charged with receiving or distributing the images. See RSA 649-A:3(c)(f).... Second, unlike these morphed images, the Bach picture depicted a young nude boy engaged in sexually explicit activity. Bach, 400 F.3d at 632 . Thus, in Bach , the creation of the photograph involved the use and sexual exploitation of a real child. In contrast, the record here contains no evidence indicating that any of these morphed images depict similar conduct by a real child.”

   1 later decision quote this exact passage
   e.g. 599 F. Supp. 2d 306 - United States v. Hotaling