Resized II

Child Pornography Sentencing: Part Two

Brian T. Hobson

File sharing programs are relatively familiar to most of the population.  The user may simply download the software for free online.  The common programs that many have heard of are Kazaa, Limewire, and Napster.  Once a user has created an account, and is logged-in to the software, the program allows the user to search all other logged in user’s computers for specific files.  These files could include music, movies, software programs, and also child pornography.

For the program to work, users must put files into a folder that they “share” with the community.  If no one shared their files, then there would be nothing to search for.  If a user has illegal files in their “share” folder then any other user can access that file and trace it to their IP address.  Given this reality, the government has a team of investigators that log into these well-known file sharing programs, and conduct searches for files relating to child pornography.  The starting point for the cases below, and most distribution cases in the real world, is the government obtaining child pornography from your computer through one of these file sharing programs and using that information to obtain a search warrant for all electronics in the household that utilize that IP address.

The following cases highlight the threshold that the prosecution must meet to justify a conviction for distribution of child pornography in cases involving the defendant’s use of a peer to peer network.  The ultimate question is at what point does a person move from possession of child pornography to distribution of child pornography when using a file sharing program?  The federal courts of appeals have been diligently attempting to answer that question over the last 10 years, and new cases discussing the mens rea requirement seem to be litigated every year.

        1. United States v. Husmann, 2014 WL 4347186 (3rd Cir. 2014)

Federal agents obtained the defendant’s computer during the execution of a search warrant amidst child pornography allegations.  On the defendant’s computer, the agents found a video containing child pornography, various images of child pornography as well as two file sharing programs.  Within the file sharing programs the agents noted that the still images found on his computer were in folders marked “shared folders.”  All items within these shared folders could be accessed by others in the file sharing program when the defendant was logged in.  Based upon this evidence, the defendant was convicted of three counts of distribution of child pornography and one count of possession of child pornography.

The Court overturned the convictions for distribution of child pornography.  The Court noted that distribution requires a transfer of possession to another person.  Here, the government put forward evidence that other persons had access to download the child pornography files, but never put forth evidence that the files were actually downloaded.  Without this transfer of possession, the conviction for distribution under 18 U.S.C § 2252A was improper.

This case stands for the proposition that merely having a file sharing program, and making child pornography available through that program, is not enough for the government to meet the elements of distribution.  The government must have evidence that a file from your computer was transferred to another person by download before a conviction for distribution can stand.

        2. United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012)

Special agents in this case were running a check for online child pornography when they recovered 52 child pornography files that were traced back to the defendant’s IP address.  Agents obtained a search warrant for the defendant’s computer.  The defendant’s computer was confiscated during the execution of that warrant.  Upon examining the defendant’s computer, the agents found that the defendant had multiple images and videos of child pornography in a folder marked “share” on the defendant’s hard drive.  The defendant was convicted of one count of possession of child pornography and two counts of distribution of child pornography.

The defendant argued on appeal that the government must show some sort of affirmative action in the transfer of the child pornography for the government to carry its burden under the distribution statute.  His argument was that mere passive possession is not enough for distribution under §2252A.

The 9th Circuit held that the evidence was enough to support his conviction for distribution.  The agents had obtained images off of his computer on two separate occasions, there were multiple files containing child pornography in his shared folder, and the defendant put forward no evidence at trial that he had attempted to un-share the folder on his peer to peer network.  Further, there was sufficient evidence to support that the defendant knew that the file sharing program allowed others to access his shared folder.  The government established this by laying out the facts behind the defendant’s knowledge of how the file sharing program worked.

The opinion in Budziak confirms the 9th Circuit’s interpretation of the distribution statute – the government must put forth evidence that the defendant knew that the file sharing program allowed other members access to their shared folder.  This Court seems to say that the defendant must know how the file sharing program works and that the folder which contained the child pornography was one of the files that other members could access before they will uphold a conviction for distribution of child pornography.

Resized III       

        3. United States v. Chiriardio, 684 F.3d 265 (1st Cir. 2012)

In this case, an FBI agent went into Limewire, and conducted a search for known child pornography files.  In that search, the defendant’s IP address came back with files that appeared to be suggestive of child pornography.  After a further search of the files available from the defendant’s IP address, the agent confirmed that the IP address contained multiple files that contained child pornography.  The agent obtained a search warrant, and seized two separate computers from the defendant.  The defendant was convicted of both possession and distribution of child pornography.

The defendant argued on appeal that the evidence was insufficient to support a conviction of distribution.  He argued that distribution under § 2252A requires some affirmative act on his part to distribute the material, and in this case he merely held the pornographic images in a folder that could be shared with others on Limewire.

The First Circuit found that the evidence was sufficient to convict the defendant of distribution.  The Court stated that when a person has made files available to others, and then those files are taken by others, distribution has occurred.  The Court noted that the defendant downloaded Limewire, selected folders to be shared, and never once attempted to un-share the child pornography in those folders.

The opinion in Chiriardio is similar to the stance that is taken in the Ninth Circuit involving sufficient evidence to prove distribution.  The Court notes that when a defendant has affirmatively made files available through a peer to peer program, distribution will occur whenever those files are taken from that folder.  No affirmative act to give the specific child pornography file in question to the other person is needed to support a conviction for distribution.

        4. United States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007)

A special agent in this case obtained images containing child pornography from the defendant’s computer using a search in the peer to peer program Kazaa.  Following an executed warrant at the defendant’s home, the defendant was charged and convicted with both possession and distribution of child pornography.

The defendant argues on appeal that the evidence was insufficient to support a conviction for distribution of child pornography.  Namely, the defendant argues that a conviction for distribution of child pornography requires an affirmative act on the part of the defendant to transfer the images, not merely passive possession and allowing access to others.  The defendant, unlike previous cases cited above, concedes on appeal that he knew that others could access the shared folder which contained child pornography.

The Court had little trouble upholding his conviction for distribution in this case.  The lynch pin to all of the distribution cases that have been previously decided is whether the defendant knew the capabilities of the file sharing program and how much evidence on that issue is needed to support a conviction.  The defendant conceded that he knew exactly how Kazaa functioned in this case.  The Tenth Circuit followed the other cases above and affirmed the conviction stating that an affirmative act of transfer is not needed.  Knowingly making it available to others is sufficient if, subsequently, an actual transfer takes place.

        5. United States v. Richardson, 713 F.3d 232 (5th Cir. 2013)

The defendant in this case was charged with possession and distribution of child pornography after agents successfully downloaded images containing child pornography from his computer using the peer to peer network Limewire.  Following a trial, the defendant was convicted for both possession and distribution of child pornography.

The defendant argued on appeal that passive participation in a transfer does not meet the definition of distribution under 18 U.S.C. §2252A.  He argues that a defendant must actively send the images containing child pornography, not merely allow access to others on the file sharing program.

The Fifth Circuit followed all of the other cases above stating that active participation is not necessary to sustain a conviction for distribution under these facts.  In relevant part:

“downloading images and videos containing child pornography from a peer-to-peer computer network and storing them in a shared folder accessible to other users on the network amounts to distribution under § 2252A(a)(2)(B) under the stipulated facts in this case. Considering that Richardson was a computer technician with computer experience, he affirmatively downloaded the LimeWire program, he maintained 144 videos of child pornography in his shared folder, he knew that others could access the materials stored in his shared folder, and Lieutenant Gray actually downloaded one such video, the evidence was sufficient to support a finding that Richardson distributed child pornography in violation of § 2252A(a)(2)(B).”

United States v. Richardson, 713 F.3d 232 (5th Cir. 2013)

Conclusion

The Circuit case law regarding the definition of distribution under 18 U.S.C. § 2252A sets the standard for which all distribution prosecutions are held.  Each circuit court follows two distinct rules when viewing sufficiency challenges to distribution convictions: 1) allowing others access to child pornography on your computer is enough for distribution (passive distribution) and 2) the defendant has to have some knowledge that the file sharing program that he is using allows others to access files on his computer.  What is less clear is how much the defendant must know in order to meet the mens rea requirement of § 2252A.  Must the defendant know that the particular folder is accessible to other users, or is simply understanding the program enough to meet the distribution statute?  This topic will continue to be litigated in the circuit courts over the coming years as defendants continue to argue the boundaries of knowledge under § 2252A.  But for now it appears that the circuit courts will sustain a conviction for distribution if a defendant downloads a file sharing program, understands how it works, and stores child pornography in a folder that is shared within that network.

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