Target Letter in a Child Exploitation Case: What It Means and the Window You Have.

A target letter is a letter issued by the DOJ to an individual or company informing them that they are considered a target of an investigation. In a child exploitation case, receiving a target letter means that the DOJ considers the possibility of charging you with a federal crime to be “substantial.” This indicates that prosecutors regard you as a putative defendant and have substantial evidence linking you to a crime.

Is a Child Exploitation Target Letter an Indictment, Arrest Warrant, or Conviction?

No, a child exploitation target letter is not an indictment, an arrest warrant, or a conviction. It is not a formal charge.

Is a Federal Child Exploitation Investigation Just Beginning?

Generally, no. While it is possible that the investigation is just beginning, it is far more likely that it has been underway for some time and is now nearing a point of prosecution.

Does a Child Exploitation Target Letter Mean That I Will Be Charged with a Federal Crime?

Not necessarily. In some cases, federal prosecutors may negotiate a non-prosecution agreement or other pre-charge resolution without filing charges. However, receiving a target letter indicates a significant possibility of charges being filed.

Where Do Federal Child Exploitation Target Letters Come From?

While a target letter could come from the U.S. Department of Justice (DOJ), the U.S. Attorney’s Office, or the Federal Bureau of Investigation (FBI), they usually come from the U.S. Attorney’s Office.

What Else Do Federal Prosecutors Call Individuals Who Are Involved in Their Investigations?

What Is a Subject of a Federal Child Exploitation Case?

A subject of a federal child exploitation investigation is an individual or company whose conduct is potentially within the scope of the investigation, but whose guilt or liability has not yet been established.

What Is a Witness in a Federal Child Exploitation Case?

A witness in a federal child exploitation investigation is someone who has information, but who is not considered a suspect.

What Should I Do Immediately After Receiving a Federal Child Exploitation Target Letter?

If you have received a federal child exploitation target letter, you should not do anything except contact a defense attorney. After receiving the letter, any subsequent action taken by you could have unintended consequences. Specifically:

• Destroying or deleting files on a device may support allegations of obstruction justice and/or tampering evidence in addition to other charges.
• Accessing a device may leave additional forensic evidence that will be used against you.
• Contacting agents, prosecutors, or witnesses to the investigation can create risks, including allegations of witness tampering or obstruction, depending on the circumstances.

If you hire defense counsel immediately, your counsel can help you understand what you need to preserve and what, if anything, should remain untouched. Your counsel can also contact the U.S. Attorney’s Office or other relevant authorities to determine the scope of the investigation and, if necessary, negotiate on your behalf. While talking with friends and relatives may seem harmless, their statements may be subpoenaed. Therefore, it is best that you only communicate with prosecutors through your defense counsel.

Do I Need to Preserve Digital Evidence if I Received a Child Exploitation Target Letter?

Yes. In addition to preserving all electronic data related to the investigation, you should not open or log into suspect files or accounts. You should only be able to view what is already open, and not engage in any further efforts to access or open files that are closed. If necessary, your counsel can hire a qualified examiner to perform forensic imaging on your devices in a secure environment. This will ensure that the evidence is captured without creating new data or altering existing data on your devices.

What Does the Section Related to Evidence Disposal of the Target Letter Mean?

Most target letters will include a section related to evidence disposal. In most cases, this section will warn that destroying or tampering with evidence is a federal crime. A federal prosecutor may decide to work with you before filing charges or to work with you to secure the evidence through search warrants or subpoenas. This is why it is very important to get advice and representation promptly. You can use your counsel to contact the prosecutors, agents, or other relevant authorities to determine what can be done on your behalf.

Should I Contact the Agents to Which the DOJ is Referring?

Generally, no. Once you hire a defense attorney, you should let them contact the prosecutors or agents to determine the current state of the investigation. Talking with the prosecutors or agents can result in additional charges.

What Evidence May Federal Prosecutors Already Have in Your Child Exploitation Case?

While it is difficult to determine exactly what evidence federal prosecutors have in your case without knowing the specifics of the allegations, it is clear that child exploitation target letters typically arrive after federal prosecutors have a compelling case. Here are examples of how child exploitation investigations may be initiated, and types of evidence that federal prosecutors may obtain prior to sending target letters:

What is 18 U.S.C. § 2258A, and Why Does it Matter?

Under 18 U.S.C. § 2258A, electronic communication service providers, remote computing service providers, and other providers have a duty to report any apparent violations of federal child exploitation laws to the National Center for Missing & Exploited Children. In many cases, a report made to NCMEC under 18 U.S.C. § 2258A will be one of the earliest stages of a federal child exploitation case.

What is the NCMEC CyberTipline?

The NCMEC CyberTipline is the nation's centralized online reporting system, through which members of the public and electronic service providers report suspected child sexual exploitation; NCMEC then makes those reports available to the appropriate law enforcement agencies. Reports made to NCMEC under 18 U.S.C. § 2258A often lead to federal child exploitation investigations, and are often the first evidence to prosecutors obtain.

What are Some Examples of Other Types of Evidence Federal Prosecutors May Obtain in a Child Exploitation Investigation Prior to Issuing a Target Letter?

Along with evidence from NCMEC, other examples of evidence prosecutors may obtain in a child exploitation investigation prior to issuing a target letter include, but are not limited to:

Undercover Downloads and Peer-to-Peer Monitoring

Undercover downloads and peer-to-peer monitoring are two of the most common methods of identifying potential child sexual exploitation cases. Federal agents often use these tools to locate individuals who access or store child exploitation material and then seek to prove that the individuals at issue have committed a federal crime.

Reports from Cloud Providers

Cloud providers can provide account identifiers, file upload dates, IP addresses, and other data identifying suspected perpetrators in child sexual exploitation cases. Cloud providers can also identify known-hashes or other evidence that has been flagged as potentially relating to child exploitation content.

Admissions Made During a Knock-and-Talk

Even though the investigators may have limited evidence when they conduct a knock-and-talk, admissions made during the knock-and-talk can become attribution evidence in child exploitation cases.

Device Analysis

In many child exploitation cases, the computer, phone, or storage device analysis is completed before a child exploitation target letter is issued.

Evidence from a Provider Warrant

Prosecutors can use a provider warrant to obtain stored account content without prior knowledge of the account holder.

Evidence from a Subpoena

While the U.S. Attorney’s Office does not generally issue subpoenas to targets, they can issue subpoenas to any third party. A subpoena can compel disclosure of evidence that is in the third party’s possession, and this evidence can then be used to build a case against a target.

How Long is the Precharge Window for Child Exploitation Charges?

While there is no specific legal deadline for federal prosecutors to file charges once they issue a target letter, there is generally a time limit imposed by the federal statute of limitations. This creates a window of time between the issuance of the target letter and the filing of charges in which the target should hire counsel immediately. However, the amount of time this window encompasses depends on several factors.

How Long Does it Take for Federal Prosecutors to Indict Someone After Issuing a Target Letter?

The time it takes for federal prosecutors to indict someone after issuing a target letter is not necessarily fixed, but in many cases, a grand jury can indict someone within days or weeks of a target letter. However, there are some exceptions. For example, if the investigation is so new that prosecutors have not yet completely reviewed the evidence, the federal grand jury may not be available, or the investigation is still in the forensic stage, the target will have more time to react.

How Long Does the Precharge Window Last in Federal Child Exploitation Cases?

The length of the precharge window in a federal child exploitation case varies, with the length being dependent on whether federal prosecutors are willing to negotiate a plea. In many cases, plea negotiations can extend the window, but they can also lead to charges being filed sooner. At this point, prosecutors may no longer see any reason to wait to file charges and seek an arrest warrant rather than negotiating a voluntary surrender.

When Does the Precharge Window Expire?

For targets of federal child exploitation cases, the window generally ends when federal prosecutors file charges-usually an indictment, but sometimes an information after waiver of indictment. In many cases, this process will take only days or weeks.

How Can Defense Counsel Use the Pre-Indictment Window to Your Advantage?

During the window after receiving a target letter but before prosecutors seek an indictment, defense counsel can do a lot on your behalf. This includes:

• Making a pre-indictment presentation to prosecutors. In this situation, your defense counsel will use the knowledge they have about the case to try to convince federal prosecutors to refrain from charging.
• Negotiating a pre-indictment plea agreement. If it is clear that the prosecutor is likely to get an indictment, your defense counsel can attempt to negotiate a pre-indictment plea. This can be much more advantageous than any plea deal you might negotiate after a federal grand jury returns charges.

Does a Child Exploitation Target Letter Mean an Indictment is Imminent?

Not necessarily. A target letter means federal prosecutors currently regard you as a putative defendant, but the charging decision is often still under review, and some investigations end in a declination or resolve through a pre-indictment agreement rather than an indictment. In most cases, target letters are issued before a federal grand jury returns charges.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

How Do Digital Facts Change the Possible Charges in Federal Child Exploitation Cases?

Digital facts can change the possible charges because different types of evidence support different federal child exploitation offenses. For example,

• To prove receipt of child exploitation material, prosecutors must be able to prove the defendant knowingly acquired files.
• To prove possession, prosecutors must be able to prove the defendant knowingly maintained or had control over the material.
• The use of torrent clients can lead to allegations of distribution, as torrent clients can automatically upload pieces of files to peer-to-peer networks.
• Cloud syncing may make it look like a defendant manually downloaded child exploitation material to multiple devices, even though the process may have happened automatically.
• Cache files, thumbnails, and other artifacts can raise issues regarding the defendant’s knowledge, use, or access to the material.
• Transfers involving messaging apps, social media, or forums, like Discord or Telegram, may support charges for receipt, possession, and distribution.

What Evidence Supports Attribution in Digital Child Exploitation Cases?

Digital evidence, such as IP addresses, does not usually establish attribution. While IP address evidence may show a device’s connection to a server hosting child exploitation material, it won’t show the human user behind the computer. Similarly, while a hash match will show that an uploaded file is identical to a file known to contain child exploitation content, this alone will not be sufficient to identify the user.

To show who accessed the material, investigators will instead perform attribution analysis, or perform an analysis of attribution data. Attribution data may include, but it is not limited to:

• Device user identifiers and identifiers of other individuals who may have been using the computer.
• User account identifiers and other identifiers for individuals with access to the account.
• IP address assignments, Mac address assignments, and other data identifying a particular device at a particular time.
• Other data that could be used to establish a target’s access to and use of the device at a particular time.
• Physical data identifying who had access to the device or who was present at the computer.
• Other evidence from the search warrant that is not related to the computer, but related to a particular person.

What Other Digital Evidence May Investigators Gather to Support Charges of Receipt or Possession?

Prosecutors may try to supplement their case with other evidence as well. For example, if you are suspected of possessing child exploitation material that you accessed using an app such as Chrome, Telegram, or a variety of other tools, prosecutors may use evidence such as:

• Browser history or app activity indicating when and how you accessed the material.
• Metadata identifying where the material originated from or how it was transmitted.
• File hashes that match materials hosted on known child exploitation websites.
• Evidence of deliberate efforts to hide or encrypt the material.
• Other devices with which you have used or have access to the material.

What if the Child Exploitation Target Letter Includes a Grand Jury Subpoena?

It is possible that your child exploitation target letter includes a grand jury subpoena. If you received a subpoena to testify or to produce documents, this means that your response may have testimony or other testimonial consequences. If you have received a subpoena, you should contact defense counsel immediately to discuss what you need to do next.

What is the Witness’s Right to the Assistance of Counsel in a Federal Grand Jury?

A witness is entitled to the assistance of counsel for the purposes of preparation and advice. However, unlike at the trial, counsel cannot sit beside the witness during the grand jury proceedings. If you received a subpoena to testify, you should discuss the logistics of testifying with your defense attorney.

What is the Witness’s Right to Invoke the Fifth Amendment in a Federal Grand Jury?

A witness has the right to invoke their privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution. Importantly, if a witness invokes their privilege, this cannot be used against the witness to show their guilt or guilt on any other issue at trial. However, it is still very important to discuss with your defense attorney when it may be appropriate to assert this right.

What Is the Witness’s Risk of Testifying in a Federal Grand Jury?

Any testimony given by the witness can be used against the witness. If you are under a child exploitation investigation and you received a subpoena to testify, then any statements you make may lead to you being charged with a crime, being subject to further investigation, or being convicted at trial.

Can a Subpoenaed Witness Assert the Fifth Amendment if it’s Applicable on a Question-by-Question Basis?

Yes. If a witness is called to testify before the federal grand jury, you can assert your Fifth Amendment rights as to each question.

Does the Act-of-Production Doctrine Apply to Subpoenaed Documents?

The act-of-production doctrine prevents the use of a witness’s act of producing documents as testimonial evidence in a criminal trial. Depending on the circumstances, your defense attorney may be able to invoke this privilege to prevent the government from using your act of producing the subpoenaed documents against you.

Is it Possible to be a Target but Not Get a Target Letter?

While target letters are often issued before a federal grand jury returns charges, federal prosecutors do not always issue target letters. In some cases, it may be possible that a target letter is not issued and instead the target finds out that they are charged when an arrest warrant is executed.

What penalties make child exploitation charges especially dangerous?

What Makes the Possible Penalties for Child Exploitation Charges Different from Other Crimes?

While most crimes carry a range of possible penalties, many crimes involving children or related offenses have special statutory requirements. These include mandatory minimum sentences and other requirements that can make these offenses significantly more dangerous.

• Receipt and distribution under 18 U.S.C. § 2252A(b)(1). A receipt and distribution charge carries a minimum five-year sentence.
• Production under 18 U.S.C. § 2251(e). If the material was produced with the a child or minor was used, a production charge carries a fifteen-year mandatory minimum sentence.
• Enticement under 18 U.S.C. § 2422(b). An enticement charge involving a child can carry a ten-year mandatory minimum sentence.

What is the Difference Between a Mandatory Minimum Sentence and a Sentencing Range?

While most defendants’ sentences are determined based on their prior records and a sentencing range, those charged with receiving the five-year mandatory minimum sentence can’t be sentenced to anything less than that five-year minimum sentence. The mandatory minimum sentence will not be reduced for any purposes except for substantial assistance to the government under 18 U.S.C. § 3553(f).

What Are the Collateral Consequences of a Federal Child Exploitation Conviction?

Beyond a five-year-to-life prison sentence, child exploitation convictions can also lead to several other collateral consequences. Here are five other possible collateral consequences of a federal child exploitation conviction:

• Supervised Release: Under 18 U.S.C. § 3583(k), the court may order up to five years or life of supervised release following the service of a child exploitation sentence.
• Sex Offender Registration: All child exploitation convictions trigger a lifelong duty to register as a sex offender.

What Factors May Increase the Offense Level in a Child Exploitation Case?

The United States Sentencing Guidelines apply to all federal criminal cases. While the federal district court may determine the ultimate sentence, you must determine whether the offense level is appropriate before the judge decides on the final sentence.

• Images of a Prepubescent Minor. Under U.S.S.G. § 2G2.2, images of prepubescent minors can increase the defendant’s offense level.
• Sadistic Content. If child exploitation material shows sadistic content, then this may also increase the defendant’s offense level.
• Volume of Images and Access. A defendant who has access to numerous child exploitation images may also face a higher offense level.
• Distribution, Use of a Computer, or Other Relevant Conduct. Defendants who distribute child exploitation material, use computers to commit child exploitation offenses, and engage in other relevant conduct will face higher sentences.

Are Child Exploitation Offenders Required to Register as Sex Offenders?

Yes. Child exploitation convictions trigger registration under the Sex Offender Registration and Notification Act (SORNA). Registration under SORNA is a lifetime obligation.

Does the Target Need to Be the Human Behind the Computer?

The answer is yes, and it is a significant issue in most child exploitation cases. Federal agents will rely on digital evidence to establish attribution before a target letter is issued.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.