It was supposed to be a sentencing hearing for a man who pled guilty to possessing child pornography in one case and was convicted of two counts of transmitting or reproducing it in another. But it turned into a hearing on the defense’s motion to set aside the jury’s verdict in the second case.
A court-requested psychosexual evaluation for Rodolphe Charles DeSeife, 53, of Danville was not complete, so Danville Circuit Court Judge Joseph Milam delayed the sentencing hearing for both cases Wednesday morning.
DeSeife’s attorney, Glenn Berger, asked the court Wednesday to set aside the jury’s July verdict finding DeSeife guilty of two counts of reproducing, transmitting or selling child pornography. The jury had sentenced him to 10 years in prison in July for those two counts.
In a separate case, DeSeife pled guilty in July to 36 counts of child pornography possession and no contest to 42 counts of possession of child pornography, with the latter including 13 counts of attempted possession. He faces up to five years for each count.
Berger argued Wednesday there was no evidence DeSeife actively sent out child pornography to anyone from his computer. Instead, that information was obtained by police, and that does not constitute reproduction on DeSeife’s part, Berger said.
There was no evidence of an “active act” by the defendant that constituted reproduction, transmission or giving out child pornography, Berger argued.
A search warrant had been served at DeSeife’s home in December 2011 after the Southern Virginia Internet Crimes Against Children Task Force at the Bedford County Sheriff’s Office obtained information that a possible offender was living in Danville.
The previous November, Bedford County Sheriff’s Office Sgt. Stephen Anders, who was on the task force, became aware of an internet protocol address linked to a computer in Danville that was using a peer-to-peer network to download child pornography. The address was later confirmed to be DeSeife’s.
Anders found more than 100 files containing child pornography when he first accessed a shared folder on the computer through a similar network developed for law enforcement use. He found three or four the second time but more than 200 the third time — just before DeSeife’s arrest.
After contacting the Danville Police Department, a search warrant was executed at DeSeife’s home in December, where Anders and Danville Police Detective Jeremy Williams sized VHS tapes, optical drives, printed pictures of children, computers and more than 100 floppy disks.
During Wednesday’s hearing on the defense’s motion, Milam asked Berger whether DeSeife’s actions were similar to someone erecting a tower and broadcasting on a radio or television and the police seeing or hearing it. Isn’t that transmitting something, and isn’t that analogous to this type of software on the Internet, Milam asked.
Having the material on one’s computer is not the same as broadcasting, Berger replied. But the sharing program is a form of transmission and once files are downloaded or made part of a program like the one used by DeSeife, anyone can access it, Milam said. The defendant wouldn’t have to necessarily do anything, Milam said.
Berger countered if DeSeife had been charged with possession with intent to distribute, the prosecution would have had a case. DeSeife’s acts were not criminal acts because the actions were carried out by the police, not DeSeife, Berger said. He did not transmit the material to them, Berger said.
Danville Assistant Commonwealth Attorney M. Coleman Adams said DeSeife downloaded the program, installed it and set the sharing levels on his file. He knew they were being shared and he didn’t completely restrict them, Adams said.
DeSeife’s actions were like those of a gas station without attendants where anyone can pull up and pump gas into their vehicles, Adams said. DeSeife’s actions constituted distribution, Adams said, pointing out the jury found DeSeife guilty after hearing the same arguments.
Milam said the defendant indicated he knew others could download from his sharing software and overruled the defense’s motion. Milam also revoked DeSeife’s $100,000 bail, after a request from Adams.
Staff writer Allison Roberts contributed to this story.