Western District of Wisconsin Refuses to Vacate Production and Possession of Child Pornography Convictions

By Reddin & Singer


The Western District of Wisconsin has refused to vacate a man’s possession and production of child pornography convictions. In Smith v. United States, a man filed a motion to vacate his 2009 criminal convictions several years after he was sentenced. According to the man, his production of child pornography conviction under 18 U.S.C. § 2251(a) was unconstitutional because the federal statute did not specifically prohibit an individual from producing pornographic images of children.

After analyzing the man’s motion, the Western District of Wisconsin first stated the constitutionality of the law as applied was previously upheld by the courts. The court next stated the law was enacted within Congress’ power under the Commerce Clause. Among other things, this constitutional provision delegates the power to regulate interstate commerce to the legislative body.

Next, the Wisconsin court said the evidence in the case demonstrated that the man actually created images of himself engaged in sexual acts with minor children. Whether the photos were distributed outside Wisconsin was irrelevant. The court stated more than one federal appeals court had previously rejected the claim that 18 U.S.C. § 2251(a) was unconstitutional when applied to child pornography that was held privately and was not circulated in interstate commerce.

The federal court then turned to the man’s failure to file a timely post-conviction motion. The court stated 28 U.S.C. § 2255(f) provides a one-year period from the date a criminal conviction becomes final within which to file a post-conviction motion. Although this one-year period may be extended in certain circumstances, the court said the man did not allege that his case merited such an extension. Since the man failed to file a post-conviction motion within this established time frame, and he did not establish that any special circumstances that would extend the limitations period existed, the Western District of Wisconsin held that it had no authority to review such a motion.

Finally, the court analyzed whether a certificate of appealability would be issued in the case. According to the federal court, the standard for issuing such a certificate was whether reasonable jurors could find that the man’s request should have been resolved differently. Since the convicted man failed to show that his constitutional rights were denied, and the question was not a close one, the federal court declined to issue the certificate. Despite this, the Western District of Wisconsin stated the convicted man was free to seek a certificate of appealability from the Court of Appeals.

If you were accused of creating or possessing child pornography in Wisconsin, you are advised to discuss your rights with a knowledgeable criminal lawyer as soon as possible. To speak with a veteran Milwaukee sex crimes attorney today, do not hesitate to contact the law offices of Reddin & Singer, LLP online or give us a call at (414) 271-6400.

Additional Resources

Smith v. United States, Dist. Court, WD Wisconsin 2015

Photo Credit: GaborfromHungary, MorgueFile