United States v. Specialist JOHN W. CHRISTY , 65 M.J. 657 ( 2007 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
SCHENCK, ZOLPER, and WALBURN
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JOHN W. CHRISTY
United States Army, Appellant
ARMY 20050291
U.S. Army Air Defense Artillery Center and Fort Bliss
Mark P. Sposato, Military Judge
Colonel Mark A. Rivest, Staff Judge Advocate
For Appellant: Captain Ryan M. Suerth, JA (argued); Colonel John T. Phelps II, JA;
Lieutenant Colonel Kirsten V.C. Brunson, JA; Major Charles L. Pritchard, Jr., JA;
Major Daniel E. Goldman, JA, USAR (on brief); Major Billy B. Ruhling II, JA;
Major Tyesha E. Lowery, JA.
For Appellee: Captain Jaired D. Stallard, JA (argued); Colonel John W. Miller II,
JA; Lieutenant Colonel Michele B. Shields, JA; Captain Magdalena A. Acevedo, JA
(on brief).
22 June 2007
------------------------------------
OPINION OF THE COURT
------------------------------------
ZOLPER, Judge:
A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of distributing child pornography in violation of
18 U.S.C. § 2252A(a)(2), and possessing child pornography in violation of 18 U.S.C.
§ 2252A(a)(5), in violation of Article 134 (clause 3), Uniform Code of Military
Justice, 10 U.S.C. § 934 [hereinafter UCMJ]. The convening authority approved the
adjudged sentence to a bad-conduct discharge, confinement for twelve months,
forfeiture of all pay and allowances, and reduction to Private E1. This case is before
the court for review pursuant to Article 66(c), UCMJ.
Appellate defense counsel assert, inter alia, appellant’s guilty plea to
distributing child pornography was improvident. The defense argues appellant never
mailed, transported, or shipped child pornography, or otherwise “delivered it to the
possession of another.” The defense also argues appellant did not invite others to
CHRISTY – ARMY 20050291
view child pornography stored on his computer, or make others aware such materials
existed. In essence, appellate defense counsel contend the record of trial contains
“absolutely no evidence” of appellant’s “intent to distribute” child pornography and,
therefore, does not support his conviction for distribution of child pornography
within the meaning of 18 U.S.C. § 2252A(a)(2).
We hold that appellant’s guilty plea to distributing child pornography was
provident. In doing so, we necessarily address what appears to be a matter of first
impression before this court and decide whether appellant’s use of LimeWire 1 peer-
to-peer file-sharing software to search for and download child pornography files
from other LimeWire users, while allowing other users to search for and download
child pornography from him, constitutes “distribution” of child pornography. We
hold that “sharing” child pornography files using peer-to-peer file-sharing software
constitutes “distribution” of child pornography within the meaning of 18 U.S.C.
§ 2252A(a)(2), and affirm the findings of guilty and the sentence.
FACTS
In the stipulation of fact and during the providence inquiry, appellant
admitted the following facts. Appellant used Internet peer-to-peer file-sharing
software called LimeWire to download child pornography images and video files.
Once appellant installed LimeWire on his computer, he became part of an Internet
file-sharing network. As a member of the network, appellant understood he could
download files from other LimeWire users, and other LimeWire users could
download files from him. 2 To assist users in locating files they might want to
download, LimeWire provides a search function. By searching for “key words,”
such as “cheerleader” and “incest,” appellant located and downloaded child
pornography from other LimeWire users’ “shared files.” Once downloaded, the
child pornography was stored in a “shared files” folder located on appellant’s
computer and accessible by other LimeWire users.
On 8 September 2003, Agent Dubord, assigned to a Federal Bureau of
Investigation (FBI) Task Force, was conducting an undercover child pornography
1
Although the record identifies this file-sharing software using the spelling
“Limewire,” for consistency, we will spell “LimeWire” using a capital W throughout
this opinion. See LimeWire, The Fastest File Sharing Program on the Planet, at
http://www.limewire.com (last visited 22 June 2007).
2
See LimeWire, Understanding Peer-to-Peer Networking and File-Sharing, at
http://www.limewire.com/about/p2p.php (last visited 22 June 2007).
2
CHRISTY – ARMY 20050291
investigation. He logged on to the Internet, launched LimeWire file-sharing
software, and conducted a key-word search using the word “kindergarten.” The
search result provided a list of “shared files” containing that key word maintained by
LimeWire users. Agent Dubord selected a video file linked to the “shared files”
folder on appellant’s computer. The video file was labeled with a sexually explicit
file name indicating it contained child pornography. 3 After selecting the video file,
Agent Dubord downloaded it and determined the file contained child pornography.
A subsequent investigation revealed appellant possessed fourteen “picture
files and [twenty-one video] files depicting children under the age of [eighteen]
engaging in sexually explicit conduct.” 4 On 9 January 2004, Special Agent Roach
from the Fort Bliss Criminal Investigation Command seized from appellant’s
barracks room two computers and a collection of diskettes (“floppy disks”), compact
discs (CDs), compact discs with read-only memory (CD-ROMs), and digital video
discs (DVDs).
Appellant’s stipulation of fact, voluntarily entered into as part of his pretrial
agreement, “correctly describe[ed] the offenses to which [he pleaded] . . . guilty,”
and acknowledged other LimeWire users had access to the child pornography
appellant stored in his “shared files” folder. Paragraph 4 of the stipulation of fact
states:
[Appellant] used the program, “LimeWire,” to download
and share files over the [I]nternet. . . . [Appellant] knew
that LimeWire is a program that allows all subscribers to
download and share files from and with each other.
[Appellant] knew that by using LimeWire, files he
downloaded would be stored in his “shared” folder. He
also knew that any files in his shared folder could be
accessed by any other person who had access to the
[I]nternet and used the LimeWire program. [Appellant]
knowingly possessed images of children engaging in
sexually explicit conduct via LimeWire[,] and knew that
the images were stored in his “shared” folder unless he
3
This video file is titled “10years_[]_with_her_11years_brother_reelkiddymov
_Lolita preteen young incest kiddie pornosex ddoggprn.mpg.mpg (child porn).”
4
Appellant told the military judge, consistent with the stipulation of fact, he
believed these images were of children approximately fourteen to sixteen years old,
and in some cases, as young as ten or eleven years old.
3
CHRISTY – ARMY 20050291
made the affirmative effort to delete them. [Appellant]
knew that files in his shared folder would be presented to
others who accessed his shared folder, and therefore,
available for distribution to other persons using LimeWire.
[Appellant] also knew that files were distributed from his
LimeWire shared folder. [Appellant] allowed other users
to access his shared folder via the [I]nternet, which he
admits is a form of interstate commerce, and therefore,
made these distributions to other LimeWire users in
interstate commerce.
In paragraph 9, appellant “admits that the file named in paragraph 3 [5] of [the
stipulation of fact] was distributed in interstate commerce, via the [I]nternet, to
[Agent] Dubord[,] and [Agent] Dubord received that file from [appellant’s]
computer.”
During the providence inquiry, appellant and the military judge engaged in the
following colloquy regarding distributing child pornography:
MJ: Tell me how you think you may have distributed
child pornography during the period alleged?
ACC: I had those files in my shared folder on LimeWire.
So whenever I had LimeWire running [and was connected
to the Internet], anybody could have accessed those
images.
....
MJ: . . . [Y]ou understood that [LimeWire] was a file-
sharing program?
ACC: Yes, sir.
MJ: And once again, your understanding was that persons
using that program could access files on your computer
and swap them?
ACC: Yes, sir.
5
See note 3, supra.
4
CHRISTY – ARMY 20050291
....
MJ: Do you doubt that people may have downloaded files
from your computer during the timeframe alleged?
ACC: No, sir.
MJ: And during that timeframe did you know that you
distributed child pornography?
ACC: Yes, sir.
MJ: How did you know that?
ACC: Because it was in my shared folder in the LimeWire
program. So every time I signed on [to the Internet],
anybody could access [it].
MJ: And during that time you were conscious of the fact
that there were images containing child pornography that
you had[ not] . . . delet[ed] at that time?
ACC: Yes, sir.
Appellant also told the military judge he thought distributing child
pornography was wrongful because it involved “spreading the files around, [and]
giving access to the files to persons unknown.” Appellant and the military judge
then briefly discussed the video file Agent Dubord downloaded as follows:
MJ: Now the stipulation [of fact] reflects that an FBI
agent, [Agent] Dubord, actually downloaded a particular
file from your computer using th[e] LimeWire program;
are you aware of that?
ACC: Yes, sir.
....
MJ: Are you satisfied that that actual file was contained
on your computer in that LimeWire file?
ACC: Yes, sir.
5
CHRISTY – ARMY 20050291
....
MJ: And how do you believe that Agent Dubord
downloaded that file?
ACC: He typed in a search word and went to files that
popped up. He clicked on one that was on my computer
and downloaded it.
MJ: By use of the Internet?
ACC: Yes, sir.
The child pornography appellant downloaded using LimeWire software
formed the basis for Specification 1 of the Charge (possession of child
pornography). The access to child pornography appellant provided other LimeWire
users, as well as Agent Dubord’s act of downloading a video file containing child
pornography, formed the basis for Specification 2 of the Charge (distribution of
child pornography).
LAW
Standard of Review
The rules governing intermediate-level review of guilty pleas is well
established in military jurisprudence. In United States v. Firth, 64 M.J. 508 (Army
Ct. Crim. App. 2006), this court reiterated:
The Courts of Criminal Appeals review a military judge’s
decision to accept a guilty plea for an abuse of discretion.
United States v. Abbey, 63 M.J. 631, 632 (Army Ct. Crim.
App. 2006) (citing United States v. Eberle, 44 M.J. 374,
375 (C.A.A.F. 1996)). On appeal, we will not overturn a
military judge’s acceptance of a guilty plea unless the
record of trial reveals a substantial basis in law and fact
for questioning the military judge’s decision. United
States v. Adams, 63 M.J. 223, 226 (C.A.A.F. 2006) (citing
United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).
A legally and factually sound providence inquiry must
establish that the accused admits and believes he is guilty
of his crimes, and provide a developed factual predicate,
in declaratory fashion, that objectively supports, and is
consistent with, the guilty plea. Rule for Courts-Martial
6
CHRISTY – ARMY 20050291
[hereinafter R.C.M.] 910(e); United States v. Simmons,
63 M.J. 89, 92 (C.A.A.F. 2006); United States v. Barton,
60 M.J. 62, 64 (C.A.A.F. 2004); United States v. Morris,
58 M.J. 739, 742-43 (Army Ct. Crim. App. 2003).
Id. at 510; United States v. Brooks, 64 M.J. 587, 589 (Army Ct. Crim. App. 2006)
(stating same); United States v. Axelson, __ M.J. __, 2007 CCA LEXIS 140, *26–
*33 (Army Ct. Crim. App. 2007) (discussing guilty plea jurisprudence). Further-
more, a military judge can use a stipulation of fact in conjunction with the accused’s
verbal admissions, United States v. Sweet, 42 M.J. 183, 185–86 (C.A.A.F. 1995), but
there must be sufficient evidence that the accused is “‘convinced of, and able to
describe[,] all the facts necessary to establish guilt.’” United States v. Faircloth,
45 M.J. 172, 174 (C.A.A.F. 1996) (quoting R.C.M. 910(e) discussion).
Article 45(a), UCMJ, states: “If an accused . . . after a plea of guilty sets up
matter inconsistent with the plea, or if it appears that he has entered the plea of
guilty improvidently . . . a plea of not guilty shall be entered in the record, and the
court shall proceed as though he had pleaded not guilty.” Our superior court has
interpreted this statutory provision to mean that, should an accused set up matters
inconsistent with his plea, “‘inconsistencies and apparent defenses must be resolved
by the military judge or the guilty pleas must be rejected.’” United States v. Rokey,
62 M.J. 516, 518 (Army Ct. Crim. App. 2005) (quoting United States v. Outhier,
45 M.J. 326, 331 (C.A.A.F. 1996)); R.C.M. 910(h)(2). While the military judge
need not “drag appellant across the providence finish line,” United States v. Le,
59 M.J. 859, 864 (Army Ct. Crim. App. 2004), he is duty-bound to “identify the
particular inconsistency at issue and explain its legal significance to the accused,
who must then either retract, disclaim, or explain the inconsistent matter.” Rokey,
62 M.J. at 518.
“Distribution” Defined
Appellant’s conviction for distributing child pornography is based upon a
violation of the Child Pornography Prevention Act (CPPA), 18 U.S.C. § 2251, et
seq., specifically, 18 U.S.C. § 2252A(a)(2). The statute itself, however, does not
define “distribute;” nor does 18 U.S.C. § 2256, which provides definitions for
Chapter 110, “Sexual Exploitation and other Abuse of Children,” under which
§ 2252A falls. Determining how Congress intended to define “distribute” when it
enacted 18 U.S.C. § 2252A(a)(2) “is a question of statutory interpretation . . . that
we review de novo.” United States v. Martinelli, 62 M.J. 52, 56 (C.A.A.F. 2005).
Our colleagues in the federal civilian judiciary have clarified the meaning of
“distribution” within the context of 18 U.S.C. § 2252A(a)(2). In United States v.
7
CHRISTY – ARMY 20050291
Shaffer, 472 F.3d 1219 (10th Cir. 2007), the Tenth Circuit adopted the plain meaning
of “distribute.” Citing two lexicons, the Shaffer Court stated:
Black’s offers this definition: “1. To apportion; to divide
among several. 2. To arrange by class or order. 3. To
deliver. 4. To spread out; to disperse.” Black’s Law
Dictionary 508 (8th ed. 2005). Webster’s adds this
understanding: “to divide among several or many . . . deal
out . . . apportion esp. to members of a group or over a
period of time . . . [allot] . . . [dispense] . . . to give out or
deliver.” Webster’s Third New Int’l Dictionary
Unabridged 660 (2002). The instruction offered by the
District Court to the jury captured much the same
sentiment: “To distribute something simply means to
deliver or transfer possession of it to someone else.”
Id. at 1223 (alterations in original).
In United States v. Griffin, 482 F.3d 1008 (8th Cir. 2007), the Eighth Circuit
discussed definitions of “distribution” contained in the U.S. Sentencing Guidelines
Manual (2006) [hereinafter U.S.S.G.], and applied them to offenses charged under
18 U.S.C. § 2252A(a)(2). The Griffin Court stated:
“Distribution for the receipt, or expectation of receipt, of
a thing of value, but not for pecuniary gain” means any
transaction, including bartering or other in-kind
transaction, that is conducted for a thing of value, but not
for profit. “Thing of value” means anything of valuable
consideration. For example, in a case involving the
bartering of child pornographic material, the “thing of
value” is the child pornographic material received in
exchange for other child pornographic material bartered in
consideration for the material received. Additionally,
“‘[d]istribution’ means any act including production,
transportation, and possession with intent to distribute,
related to the transfer of material involving the sexual
exploitation of a minor.”
482 F.3d at 1011 (quoting U.S.S.G. § 2G2.2. app. n.1) (alteration in original)
(internal citation omitted). At least one federal district court has defined
“distribution” as “includ[ing] acts such as ‘posting material involving the sexual
exploitation of a minor on a website for public viewing.’” United States v. McVey,
476 F. Supp. 2d 560, 562 (E.D. Va. 2007) (quoting U.S.S.G. § 2G2.2. cmt. n.1);
8
CHRISTY – ARMY 20050291
United States v. Bender, 290 F.3d 1279, 1286 (11th Cir. 2002) (“[W]e hold that
when a defendant trades child pornography in exchange for other child pornography,
the defendant has engaged in distribution for the receipt, or expectation of receipt,
of a thing of value . . . .”) (internal quotation marks omitted). 6
Required Mens Rea Under 18 U.S.C. § 2252A(a)(2)
Criminal law distinguishes between knowledge and intent. An accused
knowingly distributes child pornography when “he is aware that it is practically
certain that his conduct will cause such a result,” despite what his desire might be as
to the result. Wayne R. LaFave, Criminal Law 231–32 (3d ed. 2000) (internal
quotation marks omitted). An accused, however, intentionally distributes child
pornography when “it is his conscious object[ive or desire, whatever the likelihood,]
to cause such a result.” Id. at 231 (internal quotation marks omitted). The two
states of mind are not interchangeable. A “knowing” distribution imports a state of
mind that accommodates a lesser certainty of result than does an “intentional”
distribution. Both are culpable, but describe differing states of criminal awareness.
“Knowing,” in this sense, connotes something less than the “absolute certainty”
implied by “intentional.” However the difference between these two mens rea may
be characterized, the fact remains that for determining the providence of this
appellant’s guilty plea, only the lesser mens rea of a “knowing” distribution is
required.
This point is illustrated by the statute itself. 18 U.S.C. § 2252A(a)(2) holds
criminally liable “any person who . . . knowingly . . . distributes . . . any child
pornography . . . [or] . . . any material that contains child pornography.” (Emphasis
added.) Therefore, in a contested case, the government does not have to prove
6
See also Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 920
(2005) (“[P]eer-to-peer networks are employed to store and distribute electronic
files by universities, government agencies, corporations, and libraries, among
others.”) (emphasis added); id. at 922–23 (“Some musical performers, for example,
have gained new audiences by distributing their copyrighted works for free across
peer-to-peer networks . . . .”) (emphasis added); cf. 18 U.S.C. § 841(n) (rendering
definitions for “Chapter 40. Importation, Manufacture, Distribution and Storage of
Explosive Devices,” and stating: “‘Distribute’ means sell, issue, give, transfer, or
otherwise dispose of.”); 18 U.S.C. § 1468(b) (criminalizing “[d]istributing obscene
material by cable or subscription television,” and stating: “As used in this section,
the term ‘distribute’ means to send, transmit, retransmit, telecast, broadcast, or
cablecast, including by wire, microwave, or satellite, or to produce or provide
material for such distribution.”).
9
CHRISTY – ARMY 20050291
beyond a reasonable doubt that an accused had the “intent to distribute” child
pornography, or that he “caused [child pornography] to be distributed.” Shaffer, 472
F.3d at 1226 (alteration in original). The government need only prove by legally
competent evidence the accused knowingly distributed child pornography in order to
satisfy the required mens rea element in 18 U.S.C. § 2252A(a)(2). Id. at 1225–26,
1227.
“‘[A] guilty plea is an admission of all the elements of a formal criminal
charge[.]’” Barton, 60 M.J. at 64 (quoting United States v. Care, 18 U.S.C.M.A.
535, 539, 40 C.M.R. 247, 251 (1969)) (alterations in original). When an accused
enters pleas of guilty, he relieves the government of its “burden to prove his guilt
beyond a reasonable doubt.” United States v. Gutierrez, 64 M.J. 374, 379 (C.A.A.F.
2007) (Baker, J., dissenting) (recognizing “the Supreme Court and this Court have
long held that an accused can waive certain core [C]onstitutional rights, such as the
right to trial itself”). Therefore, in a guilty plea case, to satisfy the required mens
rea element in 18 U.S.C. § 2252A(a)(2), an accused need only admit facts that
objectively establish he knowingly distributed child pornography.
DISCUSSION
Appellant now asserts his guilty plea to distributing child pornography was
improvident. He argues he never affirmatively gave or delivered child pornography
to others (or intended to do so), and did not invite others to view child pornography
stored on his computer. Appellant, therefore, contends making child pornography
available to others using LimeWire peer-to-peer file-sharing software does not
constitute “distribution” under 18 U.S.C. § 2252A(a)(2). We disagree.
Appellant pleaded guilty to two specifications alleging violations of 18 U.S.C.
§ 2252A, charged under clause 3 of Article 134, UCMJ. The military judge twice
carefully explained appellant’s rights to counsel, forum selection, and pleas, and
appellant affirmatively stated he understood them. The military judge also
explained to appellant the meaning of his pleas, and appellant affirmatively
indicated he fully understood the ramifications of his decision to plead guilty.
Furthermore, the military judge explained to appellant the elements and definitions
regarding distributing child pornography, and appellant affirmatively acknowledged
he understood them, had no questions about them, and believed and admitted those
elements and definitions correctly described his charged misconduct.
In this case, appellant’s actions establish he voluntarily disseminated or
transferred, i.e., knowingly distributed, child pornography to other people.
Appellant admitted he downloaded child pornography files using LimeWire
software, purposely stored the files in his “shared files” folder, and could have, but
did not, remove or delete the child pornography from that folder. More important,
10
CHRISTY – ARMY 20050291
appellant told the military judge he knew he had been “distributing” child
pornography because he stored those files in his “shared files” folder, which other
LimeWire users could access and from which they could download. He further
stated “whenever [he] had LimeWire running[, and was connected to the Internet],
anybody could have accessed those images” because LimeWire “was a file-sharing
program.” Appellant agreed with the military judge that “you may not even be
aware that [others are] downloading [a] file at the time,” but admitted he had no
doubt other LimeWire users had downloaded child pornography from his computer.
Furthermore, appellant told the military judge he knew Agent Dubord “actually
downloaded” a video file containing child pornography from his computer using
LimeWire peer-to-peer file-sharing software. Based on these facts, we do not find a
substantial basis in law and fact for questioning appellant’s guilty plea to
distributing child pornography. Firth, 64 M.J. at 510. Appellant admitted facts that
objectively establish he knowingly distributed child pornography within the meaning
of 18 U.S.C. § 2252A(a)(2). “In determining whether the providence inquiry
provides facts inconsistent with the guilty plea, we take the accused’s version of the
facts ‘at face value.’” United States v. Gilchrist, 61 M.J. 785, 791 (Army Ct. Crim.
App. 2005) (quoting United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976)).
The facts in appellant’s case are almost identical to those in Shaffer, 472 F.3d
at 1219, a case involving a defendant who was caught distributing child pornography
in much the same way as was appellant. Id. at 1222. In Shaffer, a special agent
from the U.S. Department of Homeland Security’s Bureau of Immigration and
Customs Enforcement discovered a “shared folder,” accessible by other account
users, which had “a large number of files containing images and videos of child
pornography.” Id. The special agent then downloaded images of child pornography
stored on Mr. Shaffer’s computer. Id. Further investigation led to a search of
Mr. Shaffer’s home, the seizure of his computer, and his subsequent confession that
he “knowingly download[ed] . . . 100 [video files] and 20 still photos involving
child pornography.” Id.Mr. Shaffer used file-sharing software similar to LimeWire called Kazaa. 7
There was no question that Mr. Shaffer, like appellant, understood other users had
7
“Kazaa is a peer-to-peer computer application that allows users to trade computer
files through the Internet. It is hardly a unique service; at any one time today, there
are apparently in excess of four to five million people online sharing over 100
million files.” Shaffer, 472 F.3d at 1221 (internal citation and footnote omitted); see
Kazaa, at http://kazaa.com/us/index.htm (last visited 22 June 2007); see also United
States v. Ober, ARMY 20040081 (Army Ct. Crim. App. 25 May 2007) (unpub.)
(continued . . .)
11
CHRISTY – ARMY 20050291
access to, and downloaded images from, his shared files folder, which contained
child pornography. Id. at 1222, 1224. As the Shaffer parties further explained in
their respective appellate pleadings, new users obtain peer-to-peer file-sharing
software at the Kazaa website by using “an installation wizard [8] that walks them
through a step-by-step setup process.” Id. at 1221. Before one can install Kazaa
software, the wizard requires users to agree to Kazaa’s licensing agreement. Id.The new user then selects a location on his or her computer to download Kazaa
software, and creates a “shared folder” where “the files . . . download[ed] from the
shared folders of other Kazaa users” will be stored. Id. Finally, any files in the
“shared folder may be accessed and downloaded by other Kazaa users.” Id. A user
can also affirmatively opt out of allowing other Kazaa users access to his “shared
folder” and, therefore, restrict the ability to download files from his computer. Id.Here, appellant may not have actively sought out individuals and advertised
he had child pornography he was willing to share or exchange. He may not have
physically distributed child pornography to anyone, but, by downloading LimeWire
software and setting up a “shared files” folder, appellant agreed to share all files in
that folder, i.e., all his child pornography, with all other LimeWire users. The
Shaffer Court appositely analogized this type of child-pornography sharing to a self-
serve gas station:
The owner may not be present at the station, and there
may be no attendant present at all. And neither the owner
nor his or her agents may ever pump gas. But the owner
has a roadside sign letting all passersby know that, if they
choose, they can stop and fill their cars for themselves,
paying at the pump by credit card. Just because the
operation is self-serve, or in Mr. Shaffer’s parlance,
passive, we do not doubt for a moment that the gas station
owner is in the business of “distributing,” “delivering,”
“transferring” or “dispersing” gasoline; the raison d'etre[,
or underlying principle,] of owning a gas station is to do
just that. So, too, a reasonable jury could find that
(. . . continued)
(discussing transportation of child pornography in interstate commerce using Kazaa
software in violation of 18 U.S.C. § 2252A(a)(1)).
8
A “wizard” is a “program that guides a user through a procedure by means of a
sequence of simple on-screen instructions and options.” Id. at 1221 n.2.
12
CHRISTY – ARMY 20050291
Mr. Shaffer welcomed people to his computer and was
quite happy to let them take child pornography from it.
Shaffer, 472 F.3d at 1223–24; see Griffin, 482 F.3d at 1012 (“Based on [facts similar
to those in Shaffer,] the applicable definition of ‘distribution[,]’ and our reasoning
in [United States v.] Sewell, [457 F.3d 841, 842 (8th Cir. 2006),] Griffin was
engaged in the distribution of child pornography.”).
CONCLUSION
Appellant, just like Mr. Shaffer and Mr. Griffin, welcomed other LimeWire
users to his computer and voluntarily permitted them to take child pornography from
his shared files folder. On one occasion, Agent Dubord availed himself of the
opportunity and actually downloaded a child pornography video file. Adopting the
definitions and reasoning used in Shaffer and Griffin, we hold appellant’s use of
peer-to-peer file-sharing software, to download and then share—or otherwise
disseminate—child pornography stored on his computer, constitutes “distribution” of
child pornography within the meaning of 18 U.S.C. § 2252A(a)(2).
We have considered appellant’s other assignment of error, and those matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982), in our review of the entire record and find them to be without merit.
Accordingly, the findings of guilty and the sentence are affirmed.
Senior Judge SCHENCK and Judge WALBURN concur.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
13