A federal grand jury indicts Masaki Nishimura for distribution of child pornography over the
internet via his web site. During the discovery process, the prosecutor allows defense counsel to
view the images in question, as well as provides a log of the various instances of transmitting the
images to others. In addition, the prosecutor allows defense expert, upon court order, to examine
Nishimura’s hard drive.
Question 1
Nishimura opts to stand trial. Prior to trial, the FBI provides to the prosecutor an internal
memorandum informing that unbeknownst to Nishimura, his web site (from which the images
were distributed) was hacked on several occasions by his assistant. The hacker is also being
investigated for introducing images of child pornography to Nishimura’s web site as well as other
web sites. What should the prosecutor do with this information?
Question 2
Nishimura’s assistant enters into a plea and cooperation agreement with the United States. He will
testify at trial that both he and Nishimura used their otherwise legal web site to also distribute the
child pornography. As a result of his cooperation, the prosecutor agrees to recommend a sentence
of probation for the assistant. Must the prosecutor inform the defendant of the plea agreement and
its terms? Explain your answer.
Question 3
Nishimura pleads guilty to the distribution count and is set to be sentenced. The government has information that although both Nishimura and his assistant participated in the offense, Nishimura
only distributed child pornography in two instances, while the assistant hundreds of times. What should the government do with such information?
