## Facts

- Anthony Marchand, a physician and hospital pathology lab director, used a hospital office computer on a network that experienced repeated crashes linked to heavy internet image downloading.
- The hospital installed monitoring tools that repeatedly flagged Marchand’s computer for accessing sites whose URLs and descriptors suggested illegal child pornography, including references to “illegal,” “real,” and ages such as “3-11 y.o.”
- The hospital contacted the FBI; agents executed a search warrant at Marchand’s office, seizing his computer and CDs.
- During the search, Marchand spoke with agents, provided computer disks, and was told “child pornography” meant actual children engaged in sexual activity.
- Marchand stated he had additional images at home, estimated he possessed about 500 images of child pornography, and accompanied agents to his home, where he surrendered additional CDs and a computer CPU.
- Marchand described collecting the images as a “hobby” for personal enjoyment and stated that some images had been “morphed.”
- At trial, the government introduced 35 images depicting prepubescent children engaged in sexually explicit conduct.
- The government presented evidence that some images originated from pre–realistic CGI-era magazines, several depicted children were identified and met by agents, and expert testimony supported that the depicted children’s physical development matched their apparent ages.

## Issues

1. Whether the government proved beyond a reasonable doubt that the images depicted real minors, not purely computer-generated or otherwise “virtual” depictions.
2. Whether the government proved beyond a reasonable doubt that Marchand knew the images depicted real minors.

## Decision

- After a bench trial, the court found Marchand guilty of knowing possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).
- The court found beyond a reasonable doubt that the images depicted real minors.
- The court found beyond a reasonable doubt that Marchand knew the images depicted real minors.

## Legal Principles

- After constitutional limits on banning purely “virtual” child pornography, the government must prove the images depict actual minors for a conviction under § 2252A based on child pornography images.
- The “real minor” element may be proven through combined evidence, including pre-CGI sourcing, identification of depicted children, expert testimony on child development, and testimony about technological limits on realistic fabrication.
- The knowledge element may be established through circumstantial and direct evidence, including the context and labeling of accessed websites, the realistic appearance of the images, and the defendant’s admissions about possessing child pornography and collecting it for personal use.
- A defendant’s reference to “morphing” can support knowledge where it implies manipulation of images of real minors rather than wholly synthetic creation.

## Conclusion

The court convicted Marchand of knowing possession of child pornography because the government proved the images were of real minors and that Marchand knew they were real, relying on sourcing and identification evidence, expert testimony, website context, and Marchand’s own statements.


United States v. Marchand, 308 F. Supp. 2d 498 (D.N.J. 2004)