On April 26, 2004, as part of an undercover operation aimed at combating child exploitation on the Internet, Special Agent (SA) Timothy Devine, United States Secret Service, Miami Field Office, entered an Internet “chat” room using the screen name “Lisa n Miami” (LNM).

Devine observed a public message posted by a user employing a sexually graphic screen name, which was later traced to the defendant, Michael Williams.

Devine sent a non-sexual photo of a college-aged female digitally regressed to appear 10–12 years old, who LNM claimed was her daughter.

The nude children in the photos were approximately five to fifteen years old, displaying their genitals and/or engaged in sexual activity.

Two computer hard drives seized during the search held at least 22 images of actual minors engaged in sexually explicit conduct or lascivious display of genitalia.

While the motion was pending before the trial court, the parties reached a plea agreement by which Williams would plead guilty to both counts but reserve his right to challenge the constitutionality of the pandering provision on appeal.

§ 2252A(a)(3)(B) would not be construed to punish the solicitation or offering of "virtual" (computer generated/animated) child pornography, thus comporting with the holding of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

In keeping with Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002),[6] The Court stated that "an offer to provide or request to receive virtual child pornography is not prohibited by the statute.