Thomas Weindl, the former principal of Whispering Palms School who is accused of accessing child pornography, told the federal court Monday that he may present a new defense in his case.
Through his counsel, O'Connor Berman Dotts & Banes, Weindl claimed that because he was not able to view the alleged pornographic images, he can use this as an affirmative defense for his side.
Weindl is charged with receipt of child pornography and access with intent to view child pornography.
In documents filed on Jan. 7, Weindl said that Congress has provided that it is an affirmative defense to both of these charges if the pornography does not contain images of minors, or the pornography was not produced using any actual minor or minors.
According to Weindl's lawyer, “receipt” is not defined by the statute. The government, the lawyer added, can only prove receipt if a defendant downloads images. It is unclear what would qualify as “receipt” short of downloading, they added. They pointed out that the Court of Appeals has determined that merely accessing, visiting, or going to child pornography sites, while still a crime, does not qualify as “receipt.”
Weindl's counsel cited Aguilar-Turcios v. Holder, which was decided just five months ago where the Court of Appeals ruled that a defendant cannot be convicted for receipt of child pornography when all he did was obtain access to pornographic Internet sites. The Ninth Circuit held that merely visiting or accessing Internet sites is not enough for a conviction.
According to E-blaster reports that were the subject of Weindl's motion to suppress, Weindl attempted to download from seven different sites that may contain child pornography.
However, it was noted that neither the defendant or even the government has been able to access those files as the “live” E-blaster reports that contain “active” links to the suspected downloads cannot be accessed as they are on special agent Edmund Ewing's computer. The files themselves, counsel added, are windows executable files-meaning files cannot be viewed on Ewing's computer. To date, neither Weindl nor the government has viewed or accessed those images, Weindl's counsel added.
Weindl believes that “extraordinary circumstances” exist in the case because neither he nor the government knows if those files contain pornographic or, even if pornographic, the images are of minors or adults.
FBI agents arrested Weindl in June this year for allegedly using a laptop to view child pornographic materials. According to the complaint, the Public School System-issued netbook was issued to the son of an FBI special agent. The agent and his family were transferring to the U.S. mainland so he returned the netbook to Weindl. The special agent, however, had installed an “e-blaster” on the netbook in 2011 in an effort to monitor his son’s Internet use. E-blaster is a commercially available computer and Internet monitoring software program. Soon after the agent turned over the netbook to Weindl, he began receiving “e-blaster” reports indicating that the netbook was accessing child porn materials on the Internet from about June 15 to June 18, 2012.