United States v. David Husmann , 765 F.3d 169 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-2688
_____________
UNITED STATES OF AMERICA,
v.
DAVID GEORGE HUSMANN,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 12-cr-00141-001)
District Judge: Honorable Lawrence F. Stengel
_____________
Argued: March 24, 2014
Before: FUENTES, GREENBERG, and VAN
ANTWERPEN, Circuit Judges.
(Opinion Filed: September 3, 2014)
Zane David Memeger, Esq.
Robert A. Zauzmer, Esq. [ARGUED]
Michelle Rotella, Esq.
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee, United States of America
Theodore C. Forrence, Jr., Esq. [ARGUED]
Kenneth C. Edelin, Jr., Esq.
1500 John F. Kennedy Boulevard
Two Penn Center Plaza
Suite 200
Philadelphia, PA 19102
Attorneys for Appellant, David George Husmann
_____________
OPINION OF THE COURT
_____________
FUENTES, Circuit Judge.
David George Husmann placed various images of
child pornography in a shared computer folder connected to a
file sharing network. Based on that conduct, a jury convicted
him of three counts of distributing child pornography. At trial,
the government did not present evidence that any person had
actually downloaded or obtained the materials that Husmann
made available. The issue we address is whether the mere act
of placing child pornography materials in a shared computer
2
folder, available to other users of a file sharing network,
constitutes distribution of child pornography. We conclude it
does not. A conviction for distributing child pornography
cannot be sustained without evidence that another person
actually downloaded or obtained the images stored in the
shared folder. Accordingly, we vacate Husmann’s conviction
under 18 U.S.C. § 2252(a)(2) and remand for resentencing.
I.
A.
While Husmann was on supervised release for a child
pornography conviction, the U.S. Probation Office received a
software alert indicating that his computer had accessed
pornographic websites and images. In response to the alert,
U.S. Probation Officer Stephen Carmichael visited
Husmann’s residence. Carmichael found Husmann in the act
of viewing a still image of a young girl between six and eight
years old posed in a bathing suit. Carmichael thought this
image originated from a flash drive in the USB port of
Husmann’s DVD player. Carmichael seized that drive and
three other flash drives.
Carmichael found pornographic images on the flash
drives and referred the case to the FBI for investigation. After
obtaining a search warrant, FBI agents searched Husmann’s
home. They seized several computers and computer-related
items. They also questioned Husmann, who admitted to
downloading, saving, and viewing all of the images stored on
the flash drives that Carmichael had seized over a month
earlier.
3
FBI Agent Donald Price subsequently reviewed the
evidence seized from Husmann’s home. He found over 4,000
images of child erotica. Of these images, the government
identified approximately 65 still images and one hour-long
movie as child pornography. Price also found two file sharing
programs installed on Husmann’s computer, Limewire and
360 Share Pro.
File sharing programs, also known as peer-to-peer file
sharing programs, enable computer users to share and receive
electronic files, including images, videos, and audio files,
with a network of other users. To exchange files, users’
computers communicate directly with each other, rather than
through central servers. See Metro-Goldwyn-Mayer Studios
Inc. v. Grokster, Ltd., 545 U.S. 913, 919-20 (2005). Program
users can search for files made available by other users,
browse files made available by a specific user, and download
files. See United States v. Chiaradio, 684 F.3d 265, 271 (1st
Cir. 2012) (discussing the features of file sharing programs).
Program users can also make their files accessible to others
by placing their files in a designated folder that is available to
the network of program users. See id. Since communications
take place between computers connected to the file sharing
network and do not travel through a central server, see Metro-
Goldwyn-Mayer Studios, 545 U.S. at 920, placing files into a
shared folder does not automatically transmit them to another
computer; shared files do not leave a user’s computer until
another program user actually downloads them.
360 Share Pro maintains an extensive log file that
details what materials a user has made available for sharing.
Agent Price’s review of the log file in this case revealed that
child pornography files were placed in a shared folder on 360
4
Share Pro, allowing others access to the files on several dates.
However, Price could not identify when these files were
loaded to the shared folder nor could he determine if the files
were “ever downloaded to another machine.” App. 202.
B.
Following the government’s investigation, a federal
grand jury returned a seven-count indictment. Counts One
through Three alleged that Husmann knowingly distributed
child pornography, in violation of 18 U.S.C. § 2252(a)(2).
Counts Four through Six alleged that Husmann knowingly
received child pornography, in violation of 18 U.S.C. §
2252(a)(2). Finally, Count Seven alleged that Husmann
knowingly possessed child pornography, in violation of 18
U.S.C. § 2252(a)(4)(B).
The case proceeded to trial. On the first day of trial,
the government voluntarily dismissed Counts Four through
Six, which charged Husmann with knowingly receiving child
pornography. At the close of the government’s case,
Husmann moved to dismiss the remaining charges pursuant to
Rule 29 of the Federal Rules of Criminal Procedure. He
argued that the government’s evidence was insufficient to
establish that he was the person who uploaded the files in
question, since the four other people who lived with him had
easy access to the computer and flash drive at issue. The
District Court denied the motion and called for the defense’s
case. Thereafter, the jury found Husmann guilty of three
counts of distribution and one count of possession of child
pornography.
Before sentencing, the Probation Department
submitted a Presentence Investigation Report (“PSR”), which
5
identified Husmann’s base offense level as 22. The PSR
proposed several enhancements under § 2G2.2 of the
Sentencing Guidelines and calculated Husmann’s Adjusted
Offense Level as 37. The report stated that, based on an
offense level of 37 and a criminal history category of III,
Husmann’s guideline sentence ranged from 262 to 327
months. The government later filed a sentencing
memorandum. The government agreed with virtually all of
the enhancements proposed by Probation except that it
recommended a two-level, instead of four-level, enhancement
for the number of child pornography images in Husmann’s
inventory.
The District Court subsequently conducted a
sentencing hearing. The Court declined to apply a two-level
enhancement under U.S.S.G. § 2G2.2(b)(6) for the use of a
computer, since virtually all child pornography offenders use
computers. Additionally, the District Court adopted the
government’s proposal to apply a two-level enhancement for
the number of child pornography images in Husmann’s
collection. After imposing the other enhancements,
Husmann’s total offense level became 33, with a
corresponding guideline range of 168-210 months.
Ultimately, the District Court sentenced Husmann to a 240-
month term of incarceration on each count, to be served
concurrently. Husmann appealed.1
1The District Court had subject matter jurisdiction over this
case under 18 U.S.C. § 3231, and we have jurisdiction under
28 U.S.C. § 1291.
6
II.
This appeal turns on an issue of statutory construction,
namely whether placing child pornography materials in a
shared folder available to other users of a file sharing network
constitutes “distribution” within the meaning of 18 U.S.C.
§ 2252(a)(2). Husmann argues that the District Court erred in
denying his Rule 29 motion for acquittal with respect to the
distribution counts because the government presented no
evidence that anyone accessed, viewed, or downloaded files
from his shared folder. He asserts that placing child
pornography in a shared folder, without anything more, does
not amount to distribution under § 2252(a)(2). The
government, on the other hand, contends that “‘distribution’
within the meaning of the statute should be defined as
encompassing the act of sharing a file on a file sharing
service, by making it available to all other users.” Gov’t Br.
20.
Husmann also argues that the District Court committed
several errors at sentencing. He claims that the District Court
erred when it identified his prior conviction for possession of
child pornography as a predicate offense for a five-level
sentencing enhancement. Additionally, he argues that the
District Court’s imposition of a 240-month term of
imprisonment was procedurally and substantively
unreasonable. 2
2 Federal Rule of Criminal Procedure 29(a) provides that “the
court on the defendant’s motion must enter a judgment of
acquittal of any offense for which the evidence is insufficient
to sustain a conviction.” Fed. R. Crim. P. 29(a). Before the
District Court, Husmann did not present a legal argument
7
A.
Turning to Husmann’s statute of conviction, 18 U.S.C.
§ 2252(a)(2) provides that:
Any person who . . . (2) knowingly receives, or
distributes, any visual depiction using any
means or facility of interstate or foreign
commerce . . . by any means including by
computer . . . if—(A) the producing of such
visual depiction involves the use of a minor
engaging in sexually explicit conduct; and (B)
such visual depiction is of such conduct . . .
shall be punished as provided in subsection (b)
of this section.
Because the statute does not define the term
“distribute,” “we construe it in accordance with its ordinary
regarding the meaning of “distribute” in § 2252(a)(2).
Therefore, we exercise plain error review. See Puckett v.
United States, 556 U.S. 129, 134-35 (2009). To establish
plain error, an appellant must demonstrate that: “(1) there was
an error; (2) the error is clear or obvious; and (3) the error
affected the appellant’s substantial rights, which in the
ordinary case means it affected the outcome of the district
court proceedings.” United States v. Andrews, 681 F.3d 509,
517 (3d Cir. 2012) (quotation marks omitted). If these three
conditions are satisfied, “an appellate court may then exercise
its discretion to notice a forfeited error, but only if . . . the
error seriously affect[s] the fairness, integrity, or public
reputation of the judicial proceedings.” Id. (alterations in
original) (quoting Johnson v. United States, 520 U.S. 461,
467 (1997)).
8
meaning.” See Octane Fitness, LLC v. ICON Health &
Fitness, Inc., 134 S. Ct. 1749, 1756 (2014) (quotation marks
and brackets omitted). We look to dictionary definitions to
determine the ordinary meaning of a word. See United States
v. Geiser, 527 F.3d 288, 294 (3d Cir. 2008). It is well settled,
however, that a “word must not be read in isolation but
instead defined by reference to its statutory context.” Ali v.
Fed. Bureau of Prisons, 552 U.S. 214, 234 (2008). After all,
“[a] word in a statute may or may not extend to the outer
limits of its definitional possibilities. Interpretation of a word
or phrase depends upon reading the whole statutory text,
considering the purpose and context of the statute, and
consulting any precedents or authorities that inform the
analysis.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486
(2006). Therefore, to determine the meaning of “distribute” in
§ 2252(a)(2), we consider definitions of the term, the
statutory context, and the case law.
Black’s Law Dictionary defines “distribute” as: “[t]o
apportion; to divide among several” and “[t]o deliver.”
Black’s Law Dictionary 487 (9th ed. 2009). Merriam-Webster
provides the following definitions, among others, for the term
“distribute”: “to divide among several or many” and “to give
out or deliver especially to members of a group.” See
Distribute Definition, Merriam-Webster Dictionary, available
at http://www.merriam-webster.com/dictionary/distribute. We
find additional guidance in the definition of “distribute” set
forth in the controlled substances context. Under the Model
Criminal Jury Instructions for the Third Circuit, to distribute a
controlled substance means “(to deliver or to transfer)
possession or control of a controlled substance from one
person to another.” Model Criminal Jury Instructions for the
Third Circuit § 6.21.841-2 (2014); see also 21 U.S.C. §
9
802(11) (providing that “‘distribute’ means to deliver” for
purposes of drug offenses).
The statutory context confirms that “distribute” in §
2252(a)(2) means to apportion, give out, or deliver and that
distribution necessarily involves the transfer of materials to
another person. Significantly, Congress legislated specific
prohibitions against offering and promoting child
pornography within the same statutory scheme as it
prohibited distributing child pornography. See 18 U.S.C.
§ 2251(d)(1)(A) (prohibiting offers to distribute child
pornography); 18 U.S.C. § 2252A(a)(3)(B) (prohibiting the
advertisement and promotion of child pornography); see also
United States v. Sewell, 513 F.3d 820, 822 (8th Cir. 2008)
(holding that placing images of child pornography in a shared
folder on a peer-to-peer file sharing program was “clearly an
offer to distribute the file,” in violation of 18 U.S.C. §
2551(d)(1)(A)). Congress also penalized the attempted
distribution of child pornography through specific statutory
provisions. See 18 U.S.C. §§ 2252(b)(1), 2252A(b)(1).
Because Congress has separately criminalized offering,
promoting, and attempting to distribute child pornography, a
broad definition of the term “distribute” would create
unnecessary surplussage. To give effect to the entire statutory
scheme, “distribute” must require the transfer of possession of
child pornography to another person.
The decisions of our sister circuits provide support for
our construction of the term “distribute.”3 Several circuits
3 Cases addressing child pornography distribution convictions
arise under 18 U.S.C. § 2252(a)(2) as well as 18 U.S.C. §
2252A(a). Both provisions prohibit the distribution of child
10
have made clear that distribution occurs when pornographic
materials are actually transferred to or downloaded by another
person. The Ninth Circuit in United States v. Budziak held
that “the evidence is sufficient to support a conviction for
distribution under 18 U.S.C. § 2252(a)(2) when it shows that
the defendant maintained child pornography in a shared
folder, knew that doing so would allow others to download it,
and another person actually downloaded it.” 697 F.3d 1105,
1109 (9th Cir. 2012). Similarly, the First Circuit in Chiaradio
explained that distribution occurs “[w]hen an individual
consciously makes files available for others to take and those
files are in fact taken.” 684 F.3d at 282 (emphasis added); see
also United States v. Shaffer, 472 F.3d 1219, 1223 (10th Cir.
2007) (“We have little difficulty in concluding that [the
defendant] distributed child pornography in the sense of
having ‘delivered,’ ‘transferred,’ ‘dispersed,’ or ‘dispensed’ it
to others.”).
Moreover, numerous courts have noted the fact of a
file transfer or download when affirming child pornography
distribution convictions under § 2252. See, e.g., United States
v. Richardson, 713 F.3d 232, 236 (5th Cir. 2013) (upholding a
distribution conviction where a law enforcement officer
“actually downloaded” a child pornography video stored in
the defendant’s shared folder); Budziak, 697 F.3d at 1109
(affirming a distribution conviction, where FBI “agents
actually downloaded shared files containing child
pornography from an IP address registered to” the defendant);
Chiaradio, 684 F.3d at 282 (upholding a distribution
conviction because a “rational jury could conclude . . . that
pornography and are materially the same for purposes of the
issue before us.
11
the defendant intentionally made his files available for the
taking and that [the agent] simply took him up on his offer”);
Shaffer, 472 F.3d at 1224 (affirming a conviction for
distribution of child pornography based, in part, on the fact
that an agent was able to download child pornography from
the defendant’s shared folder); see also United States v.
Abraham, No. 05-344, 2006 WL 3052702, at *8 (W.D. Pa.
Oct. 19, 2006) (holding that “the defendant distributed a
visual depiction when as a result of the defendant’s
installation of an internet peer-to-peer video file sharing
program on his computer, a Pennsylvania state trooper was
able to download the child pornography from the defendant’s
computer to the trooper’s computer”).
The dissent contends that we have “missapplie[d] the
need for a download to create distribution, where other
factual bases have greater merit in interpreting the definition.”
Dissent Op. at 10. Yet no such ranking system is evident
within decisions addressing child pornography distribution
convictions. Additionally, the dissent quotes from Shaffer and
other cases to suggest that merely making files accessible to
others is sufficient to constitute distribution of child
pornography. That is not so. In Shaffer, it was undisputed that
the defendant’s child pornography had been downloaded by
other individuals, but the defendant argued that he was not
guilty of distribution because he did not take any affirmative
steps to transfer possession of those materials. The Tenth
Circuit in Shaffer rejected the defendant’s argument,
explaining that the defendant “distributed child pornography
in the sense of having ‘delivered,’ ‘transferred,’ ‘dispersed,’
or ‘dispensed’ it to others” because he “freely allowed
[agents] access to his computerized stash of images and
videos” and an agent “had no trouble whatsoever picking and
12
choosing for download images and videos from [the
defendant’s] child pornography collection.” 472 F.3d at 1223-
24. To be clear, no circuit has held that a defendant can be
convicted of distribution under § 2252 in the absence of a
download or transfer of materials by another person.
Notably, military courts interpreting § 2252 have held
that the term “distribute” requires evidence of an actual
download or transfer of materials. See United States v.
Gorski, 71 M.J. 729, 734 (A. Ct. Crim. App. 2012)
(“[D]istribution of child pornography files requires the files to
have been transferred or delivered to the possession of
another via peer-to-peer file-sharing software programs.”
(emphasis added)); United States v. Craig, 67 M.J. 742, 746
(N-M. Ct. Crim. App. 2011) (declining “to include
incomplete transfers of possession within the meaning of
‘distribute’ as it relates to child pornography”). In Gorski and
Craig, the courts rejected the defendants’ guilty pleas to
distribution of child pornography because there was no
evidence that another person actually downloaded the
materials at issue. See Gorski, 71 M.J. at 736 (rejecting the
guilty plea to distribution because the defendant’s “actions in
merely making files available for download via peer-to-peer
file-sharing software programs cannot amount to distribution
as a matter of law”); Craig, 67 M.J. at 746 (holding that the
guilty plea was “improvident because it [wa]s supported only
by facts that the images and videos were made available” and
there was no evidence of “a completed transfer of possession
of the contraband”).
B.
The government argues that the meaning of the term
“distribute” in § 2252(a)(2) should track the definition of
13
“distribution” set forth in the Guidelines Manual for purposes
of the distribution enhancement under U.S.S.G.
§ 2G2.2(b)(3). However, the definition of “distribution”
under the Sentencing Guidelines has no bearing on the
meaning of the term in § 2252. As the Tenth Circuit has held,
“the statutory term has a distinct meaning and is not as broad
as the same term under § 2G2.2(b)(3).” United States v.
Ramos, 695 F.3d 1035, 1044 (10th Cir. 2012). “Distribution”
under § 2G2.2(b)(3) extends to such acts as “possession with
intent to distribute, production, advertisement, and
transportation, related to the transfer of material involving the
sexual exploitation of a minor.” U.S. Sentencing Guidelines
Manual § 2G2.2 app. n.1. In fact, “any act . . . related to the
transfer of material involving the sexual exploitation of a
minor” qualifies as “distribution” under § 2G2.2(b)(3). Id.
(emphasis added). Defendants can be subject to the
distribution enhancement even if they are not convicted of
distributing child pornography, since the enhancement applies
to anyone convicted under 18 U.S.C. §§ 1466A, 2252,
2252A(a)-(b), and 2260(b). See U.S. Sentencing Guidelines
Manual § 2G2.2 cmt. (listing the applicable statutory
provisions); see also United States v. Vallejos, 742 F.3d 902,
908 (9th Cir. 2012) (holding that the district court properly
applied a distribution enhancement to a defendant convicted
of receipt of material involving the sexual exploitation of
minors); United States v. Layton, 564 F.3d 330, 335 (4th Cir.
2009) (upholding the application of a distribution
enhancement to a defendant convicted of possession of child
pornography). While several circuits have held that merely
placing child pornography in a shared folder on a file sharing
network warrants application of a distribution enhancement,
no circuit has relied on the Sentencing Guidelines definition
of “distribution” to interpret the meaning of the term in
14
§ 2252(a)(2). Because “distribute” in § 2252(a)(2) is narrower
than the same term in § 2G2.2(b)(3), we decline to adopt the
definition of “distribution” laid out in the Sentencing
Guidelines.
Based on the ordinary meaning of the word
“distribute,” the other statutory provisions criminalizing child
pornography offenses, and the decisions of our sister circuits,
we hold that the term “distribute” in § 2252(a)(2) requires
evidence that a defendant’s child pornography materials were
completely transferred to or downloaded by another person.
Of course, knowingly placing child pornography in a shared
folder on a file sharing network remains a criminal offense.
See, e.g., 18 U.S.C. § 2251(d)(1)(A) (prohibiting offers to
distribute child pornography); 18 U.S.C. § 2252(b)(1)
(prohibiting attempted distribution). It just isn’t distribution.
In the end, our interpretation of “distribute” in § 2252(a)(2)
might affect the government’s charging decisions, but it does
not handicap the government’s ability to prosecute child
pornography offenses.
C.
In this case, the government did not introduce evidence
that anyone downloaded child pornography materials from
Husmann’s shared folder. Price testified that a document
entitled “/yayaohno63” and several other files containing
child pornography were successfully loaded to a shared folder
on 360 Share Pro. However, neither he nor any other witness
testified that another person actually downloaded those files.
To the contrary, Price testified that he could not verify when
Husmann’s materials were placed within a shared folder nor
15
could he determine if the documents were “ever downloaded
to another machine.” App. 202.
Because distribution requires a download or transfer of
materials and because the government did not present
evidence that Husmann distributed child pornography within
the meaning of § 2252(a)(2), the District Court erred in
denying Husmann’s motion for acquittal.
III.
The government argues that, even if the District Court
committed an error, it did not amount to plain error. An error
is not “plain” if it is not “clear under current law.” United
States v. Clark, 237 F.3d 293, 297 (3d Cir. 2001). To date, the
Third Circuit has not ruled on the meaning of the term
“distribute” for purposes of § 2252(a)(2). Moreover, it does
not appear that any Article III court has addressed the precise
question of whether “distribution” occurs without evidence of
a download or transfer of materials. Yet the lack of case law
on this specific question does not doom Husmann’s appeal,
since “[n]either the absence of circuit precedent nor the lack
of consideration of the issue by another court prevents the
clearly erroneous application of statutory law from being
plain error.” See United States v. Evans, 155 F.3d 245, 252
(3d Cir. 1998).
The ordinary meaning of the word “distribute” is to
apportion, deliver, or give out; the overall statutory scheme
reveals that the term cannot encompass offers and attempts to
distribute; and appellate case law indicates that distribution
under § 2252(a)(2) requires evidence that child pornography
materials are actually downloaded by or completely
16
transferred to another person. Taken together, the District
Court’s error was “clear under current law.” See Clark, 237
F.3d at 297.
Furthermore, the error affected Husmann’s substantial
rights. Had the District Court granted Husmann’s Rule 29
motion for acquittal as to the distribution counts in the
indictment, Husmann not only would have been acquitted on
the three counts of distribution, but he would have been
subject to a lower base offense level and a reduced guideline
range. A conviction under 18 U.S.C. § 2252(a)(2) carries a
base offense level of 22. See U.S.S.G. § 2G2.2(a)(2). By
contrast, Husmann’s remaining conviction for possession of
child pornography, in violation of 18 U.S.C. § 2252(a)(4),
carries a base offense level of 18. See U.S.S.G. § 2G2.2(a)(1).
Accordingly, we conclude that the District Court
committed plain error in denying Husmann’s Rule 29 motion.
Because “imposing a sentence not authorized by law
seriously affects the fairness, integrity, and reputation of the
proceedings,” we exercise our discretion and vacate
Husmann’s conviction for distributing child pornography. See
Evans, 155 F.3d at 252. We remand to the District Court for
resentencing with respect to Husmann’s remaining conviction
for possession of child pornography. Therefore, we do not
reach Husmann’s challenges to his sentence.
IV.
A jury convicted Husmann of distributing child
pornography pursuant to § 2252(a)(2). Yet the government
did not present evidence that Husmann’s attempts to
distribute child pornography ever succeeded. Because
17
distribution requires a download or transfer of materials, we
conclude that the District Court committed plain error in
denying Husmann’s motion for acquittal. Therefore, we
vacate his conviction under § 2252(a)(2) and remand for
resentencing.
18
United States v. David George Husmann No. 13-2688,
Argued March 24, 2014
VAN ANTWERPEN, Circuit Judge, dissenting.
I cannot join my colleagues in the narrow definition of
“distribution” they would apply to child pornography cases.
George Husmann was convicted by a jury of three counts of
distributing child pornography pursuant to 18 U.S.C. §
2252(a)(2). Husmann placed images of child pornography
into a shared folder accessible to all global users of the peer-
to-peer (“P2P”) file sharing program 360 Share Pro. Once in
the shared folder, a search term and a click of a mouse
allowed access to these images by any user on the system. My
colleagues definition of “distribution,” under 18 U.S.C. §
2252, would create a system in which a person who
intentionally posted child pornography on the Internet,
knowing it is accessible to hundreds, if not millions, of
individuals, is not “distribution.” This is certainly not what
Congress had in mind and following the majority’s approach,
the crime of distribution would not be complete until a police
officer downloaded the image.1 This is a distinction without
merit. Given the plain meaning of the term, the intent of
Congress, the advancement of technology, as well as a series
of recent sentencing cases, the placing of child pornography
into a shared file accessible over a peer-to-peer file sharing
network, alone should constitute “distribution.” Husmann
1 This is not a strict requirement of the majority’s definition,
however due to the inability to search third party computers,
law enforcement officers downloading the image prior to
arrest is most common in cases under § 2252. See e.g., United
States v. Richardson, 713 F.3d 232 (5th Cir. 2013).
1
took all the necessary steps to make a product available to the
public in a publically accessible location, and whether or not
a party took that product is irrelevant to both the purpose of §
2252 and to his role as distributor. For that reason, the
conviction of Appellant George Husmann for “distribution”
under 18 U.S.C. § 2252 should be upheld.
As explained in my colleague’s discussion of how
peer-to-peer networks 2 operate, when a file is placed into the
2 Speaking to its original purpose, the Supreme Court found
“peer-to-peer networks [were originally] employed to store
and distribute electronic files by universities, government
agencies, corporations, and libraries, among others.” MGM
Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 20 (2005). Peer-
to-peer programs allow users through their computers to
communicate “directly with each other, not through central
servers.” United States v. Caparotta, 890 F. Supp. 2d 200,
202 (E.D.N.Y. 2012) (quoting Grokster, 545 U.S. at 919-20).
These file sharing components “combine[] two functions: the
ability to search for and download the files from other users,
and the ability to make files on one’s own computer available
to other users.” Lewis, 554 F.3d at 211 (emphasis added). “A
P2P program user can make his files accessible for browsing
and downloading by other users by placing such files into a
designated folder (the ‘shared folder’) that will automatically
share its contents with the network.” Caparotta, 890 F. Supp.
2d at 919-20 (citing United States v. Chiaradio, 684 F.3d 265,
271 (1st Cir. 2012) (emphasis added)). “The most common
mode of distribution today is ‘open’ P2P file-sharing.” Report
to Congress: Federal Child Pornography Offense: Executive
Summary, 25 Fed. Sent. R. 334, 2013 WL 8171786, at *14
(June 1, 2013). “Open” sharing allows distribution
2
“shared” folder, it is available to anyone who has the network
on their own computers, and readily accessible by typing in
relevant search terms. United States v. Lewis, 554 F.3d 208,
211 (1st Cir. 2009). “Also by default, any file a user
downloads through [a peer-to-peer program] is automatically
placed in that ‘Shared’ folder and is therefore offered by that
user for further downloads by other users.” Id. Thus, a picture
uploaded into a “shared” folder enters an expanding
“international network of interconnected computers” and is
available to “anyone else on the Internet” with this program. 3
“impersonal[ly] and indiscriminate[ly]” to anyone with the
program. Id. Other types, “reflecting a significant evolution of
technologies used to distribute child pornography . . . in the
last decade” include “closed” programs, as well as “pure,”
“centralized” and “hybrid” networks, differing in how and
where a file is stored and accessed. Id.; see also Columbia
Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1025-26 (9th
Cir. 2013). These programs have “changed the way typical
offenders today receive and distribute child pornography.” 25
Fed. Sent. R. 334, 2013 WL 8171786, at *5. Most worrying, a
child porn distributor does not “need[] any particular
technological expertise” and because P2P networks cut out a
centralized server (or “middle man”), there are no records.”
Michael J. Henzey, Going on the Offensive: A Comprehensive
Overview of Internet Child Pornography Distribution and
Aggressive Legal Action, 11 Appalachian J. L. 1, 50 (2011).
As a result, peer-to-peer networks are “stimulating the supply
in the interstate market [of] child pornography.” Adam Walsh
Child Protection and Safety Act of 2006, Pub. L. 109-248, §
501, 120 Stat. 587 (2006).
3 Peer-to-peer sharing programs are free to the public via
download. (App. vol. II at 199a.)
3
Reno v. ACLU, 521 U.S. 844, 849 (1997); see also Lewis, 554
F.3d at 211.
Key to the analysis of whether Husmann “distributed”
the pornography by placing it into his “shared” folder is the
type of peer-to-peer network which was used in this case. It
was 360 Share Pro.4 360 Share Pro “utilizes the LimeWire
network to operate.” (App. vol. II at 186a.) LimeWire, often
involved in the relevant case law discussed within, functions
through an open and centralized “Gnutella network,” and
“users can share all files stored on their computers with other
LimeWire users.” Arista Records LLC v. Lime Grp. LLC, 784
F. Supp. 2d 398, 410 (S.D.N.Y. 2011) (internal quotation
marks omitted) (“LimeWire recommends that all LimeWire
users share generously with one another.”). Further,
LimeWire then scans the computers of other
LimeWire users, to locate files that match the
search criteria. The LimeWire user can
download any files that LimeWire locates.
When the user downloads a file, LimeWire
transfers a digital copy of the file from the
computer on which it is located to the
LimeWire user’s computer.
Id. at 410-11. Thus, once a file is placed in a shared folder it
is “uploaded,” and available to the online community. (App.
vol. II at 203a.)
4360 Share Pro is a subsidiary user of the greater LimeWire
network. (Id. at 186a.)
4
We must not lose sight of the nature of Husmann’s
crime.5 Child pornography has the ability to perpetually harm
the child posed or acted upon in the image or video. “Many
victims live with persistent concern over who has seen images
of their sexual abuse and suffer by knowing that their images
are being used by offenders for sexual gratification . . . .” 25
Fed. Sent. R. 334, 2013 WL 8171786, at *4. Once images of
child pornography are distributed over the Internet, “it is
impossible to eradicate all copies of [them].” Id. More
troubling, the prevalence and pervasiveness of child
pornography has increased dramatically in the Internet age. §
501, 120 Stat. 587. (“The advent of the Internet has greatly
increased the ease of transporting, distributing, receiving, and
advertising child pornography in interstate commerce.”).
Moreover, in subsequent findings, Congress noted “[t]he
technological ease, lack of expense, and anonymity in
obtaining and distributing child pornography over the Internet
has resulted in an explosion in the multijurisdictional
distribution of child pornography.” Prosecution—Child
Pornography Cases, Pub. L. 110-358, § 102, 122 Stat. 4001
(2008). The House of Representatives, in the report
underlying the statute in question, 18 U.S.C. § 2252, 6 states:
These disturbing images litter the Internet and
pedophiles can purchase, view, or exchange this
material with virtual anonymity . . . and [the
Internet’s] expansion . . . has led to an explosion
5 If the majority prevails, I implore Congress to immediately
update 18 U.S.C. § 2252 to prevent the uploading of images
to a peer-to-peer network by defining such action as
“distribution.”
6 Cited as the “Child Protection Act of 2012.”
5
in the market for child pornography, making it
easier to create, access, and distribute these
images of abuse.
H.R. Rep. No. 112-638 (2012), reprinted in 2012
U.S.C.C.A.N. 662, 663 (emphasis added).
The ease, anonymity, and virtual untraceability with
which Husmann made child pornography globally available is
the engine behind § 2252, and the reason that “distribute”
should be given a broader interpretation than the majority
gives it. In analyzing the plain meaning of the statute, we
need not define the outer boundaries of the term
“distribution”; rather, we need only answer the specific
question of whether placing an image of child pornography
into a modern day “shared” folder as part of a peer-to-peer
network is “distribution,” as the District Court found. 7
If a statutory term is undefined, we must apply the
basic principles of statutory interpretation when analyzing the
definition of “distribution.” See Smith v. United States, 508
U.S. 223, 228 (1993) (“When a word is not defined by statute,
we normally construe it in accord with its ordinary or natural
meaning.”). First, we must determine “whether the language
at issue has a plain and unambiguous meaning with regard to
the particular dispute in the case.” Marshak v. Treadwell, 240
F.3d 184, 192 (3d Cir. 2001). Looking both to Black’s and
Merriam-Webster’s dictionaries, we find the plain meaning of
“distribute” to be: “1. To apportion; to divide among several.
7 The parties fail to raise the “rule of lenity,” see, e.g., United
States v. Cheeseman, 600 F.3d 270, 276 (3d Cir. 2010), in
their briefs on appeal and thus the issue is deemed waived.
6
2. To arrange by class or order. 3. To deliver. 4. To spread
out; to disperse.” Black’s Law Dictionary 487 (9th ed. 2009).
Furthermore, in construing statutes, “we must, of course, start
with the assumption that the legislative purpose is expressed
by the ordinary meaning of the words used.” Richards v.
United States, 369 U.S. 1, 9 (1962). As the Supreme Court
recognized, “reasonable statutory interpretation must account
for both ‘the specific context in which . . . language is used’
and ‘the broader context of the statute as a whole.’” Util. Air
Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014) (quoting
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997))
(emphasis added). Clearly the actions undertaken by
Husmann, placing the images in a folder shared globally,
dispersed and apportioned these images to third parties within
the plain meaning of the statute.8
The purpose of Congress in § 2252 and prior related
statutes was to counter the now readily available market for
child pornography over the Internet. H.R. No. 112-638. As
early as 1982, the Supreme Court recognized the harmful and
reoccurring issues created by the distribution of child
pornography. See New York v. Ferber, 458 U.S. 747, 759-60
(1982). “[T]he distribution network for child pornography
must be closed if the production of material which requires
8 Lower courts applying this plain meaning approach have
held the definition of “distribution” is not limited to situations
in which someone downloads an image. See Caparotta, 890
F. Supp. 2d at 204. (“Considering the plain meaning of
‘distribute,’ the court finds that defendant’s placing of child
pornography files in a shared folder accessible to others via a
P2P program on the internet constitutes ‘distribution’ under
Section 2252(a)(2) to persons to share and download.”).
7
the sexual exploitation of children is to be effectively
controlled.” Id. at 759. This trade includes the rampant use of
peer-to-peer networks as “pedophiles use child pornography
distribution methods other than traditional websites that are
difficult to detect and disrupt, such as peer-to-peer
technology.” Michael J. Henzey, Going on the Offensive: A
Comprehensive Overview of Internet Child Pornography
Distribution and Aggressive Legal Action, 11 Appalachian J.
L. 1, 50 (2011) (citing Chad M.S. Steel, Child Pornography
in Peer-to-Peer Networks, 33 Child Abuse & Neglect 560,
560 (2008)).
The purpose of § 2252 is, amongst others, to prevent
the repeated abuse of children used to create the pornography
by stopping the dissemination of images over the Internet. See
§ 501, 120 Stat. 587. Congress itself, when passing the Adam
Walsh Child Protection and Safety Act of 2006,
acknowledged the market for child pornography “through
virtually every Internet technology, including . . . peer-to-peer
[networks.]” Id. Further, Congress found distribution to be
paramount to the trade and further exposure of the exploited
children, see id. (“Prohibiting the intrastate . . . distribution . .
. of child pornography . . . will cause some persons engaged
in such intrastate activities to cease all such activities, thereby
reducing both supply and demand in the interstate market for
child pornography.”), and rested its findings on the premise
that “[a] substantial interstate market in child pornography
exists, including not only a multimillion dollar industry, but
also a nationwide network of individuals openly advertising
their desire to exploit children and to traffic [and] distribute
child pornography with the expectation of receiving other
child pornography in return.” Id. Contextually, one can draw
an inference from the findings underlying this Act that the
8
prevention of Internet distribution across peer-to-peer
networks was contemplated as part of its purpose, and that
purpose can be addressed by not limiting the definition of the
term “distribution.”
Additionally, “distribution” has not been defined as
requiring a subsequent download in similar contexts, 9 most
notably the transferring of music over similar peer-to-peer
networks in violation of copyright distribution rights. See
Grokster, 545 U.S. at 919 (holding that “one who distributes a
device with the object of promoting its use to infringe
copyright . . . is liable”). “Electronic distribution on a peer-to-
peer, without license from the copyright owners, violates the
copyright owners’ exclusive right of distribution . . . .”
Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 903
(8th Cir. 2012).
Finally, the Sentencing Guidelines definition, which
does not require a download,10 has been incorporated by a
9 In drug distribution cases, “distribution” has been broadly
interpreted to include any “acts perpetrated in furtherance of a
transfer or sale, such as arranging or supervising the delivery,
or negotiating for or receiving the purchase price.” United
States v. Jackson, 213 F.3d 1269, 1296 (10th Cir. 2000),
vacated and remanded on other grounds, 531 U.S. 1038
(2000) (internal quotation marks omitted); see also 18 U.S.C.
§ 841(n) (“Distribute, defined, means to sell, issue, give,
transfer, or otherwise dispose of.”).
10 It is noteworthy that the United States Sentencing
Guidelines § 2G2.2, when directly addressing crimes
committed under § 2252, has defined “distribute” in the
broader act as
9
number of Circuits for similar crimes.11 See United States v.
Layton, 564 F.3d 330, 335 (4th Cir. 2009) (collecting cases)
(“We concur with the Seventh, Eighth, and Eleventh Circuits
and hold that use of a peer-to-peer file-sharing program
constitutes ‘distribution’ for the purposes of U.S.S.G. §
2G2.2(b)(3)(F).” (emphasis added).); see also Chiaradio, 684
F.3d at 282 (noting “[t]he fact that the defendant did not
actively elect to transmit those files is irrelevant” to
distribution). Several Circuits in this context have described
the process of placing an image into a shared folder as
“distribution.” See, e.g., United States v. Vadnais, 667 F.3d
1206, 1209 (11th Cir. 2012) (noting control over what images
including possession with intent to distribute,
production, transmission, advertisement, and
transportation, related to the transfer of material
involving the sexual exploitation of a minor.
Accordingly, distribution includes posting
material involving the sexual exploitation of a
minor on a website for public viewing but does
not include the mere solicitation of such
material by a defendant.
U.S.S.G. § 2G2.2(b)(3)(F) cmt. n.1 (emphasis added).
11 Our Circuit has followed this defining course, albeit for
“aiding and abetting the transportation of child pornography”
in an unpublished opinion. See United States v. Schade, 318
F. App’x 91, 94 (3d Cir. 2009) (“[W]e cannot conclude that
the jury was unreasonable in determining from this evidence
that Schade intentionally kept child pornography files in the
‘My Downloads’ folder and knew that doing so would allow
Bearshare users to access and upload them.”).
10
are shared affects distribution); Arista Records, 784 F. Supp.
2d at 411 n.6 (describing the open and encouraged
distribution process allowed through peer-to-peer networks).
The Ninth Circuit, in a sentencing case, held “that ‘evidence
of a deliberate, affirmative action of delivery’ is not required
to sustain a conviction for distribution of child pornography
under 18 U.S.C. § 2252(a)(2).” United States v. Vallejos, 742
F.3d 902, 907 (9th Cir. 2014) (quoting United States v.
Budziak, 697 F.3d 1105, 1108-09 (9th Cir. 2012)); see also,
e.g., United States v. McManus, 734 F.3d 315, 319 (4th Cir.
2013) ((“[Section] 2G2.2(b)(3)(F) is a residual enhancement”
that may be applied “when a defendant knowingly permits
others to access and retrieve child pornography files in the
defendant’s possession, even if he does so passively.”);
United States v. Reingold, 731 F.3d 204, 229–30 (2d Cir.
2013) (“[K]nowingly placing child pornography files in a
shared folder on a peer-to-peer file-sharing network
constitutes distribution . . . even if no one actually obtains an
image from the folder” and “without regard to whether the
defendant’s primary purpose in placing child pornography
files in a file-sharing program was to receive or to distribute
child pornography.”).
The majority misapplies the need for a download to
create distribution, where other factual bases have greater
merit in interpreting the definition. For example, in Shaffer,
the Tenth Circuit, acknowledging that a law enforcement
agent downloaded the images from a shared folder, noted that
while the defendant “may not have actively pushed
pornography on [peer-to-peer] users, . . . he freely allowed
them access to his computerized stash of images and videos
and openly invited them to take, or download, those items.”
472 F.3d at 1223 (emphasis added). Other Circuits, in the
11
sentencing context, have recently interpreted the statutory
interpretation of “distribution” as, “when [a party] either
transfers it to another person or makes it accessible to others
through a file-sharing website or peer-to-peer network.”
United States v. Grzybowicz, 747 F.3d 1296, 1308 (11th Cir.
2014) (emphasis added); see also United States v. Collins,
642 F.3d 654, 655-57 (8th Cir. 2011) (affirming a district
court’s determination of “distribution” to only require placing
the images in a shared folder of a peer-to-peer network and
knowledge of how that system works).12 This is consistent
with the technology, where users control what is in their
shared folders, and, once removed, those images are not
accessible to the Internet. See Vadnais, 667 F.3d at 1208-09.
Determining that placing an image of child
pornography into a shared folder constitutes “distribution”
would, in light of the technological advances, encompass the
plain meaning and the purpose of § 2252. See United States v.
C.R., 792 F. Supp. 2d 343, 367 (E.D.N.Y. 2011), overruled
on other grounds by United States v. Reingold, 731 F.3d 204
(2d Cir. 2013) (noting “technical advances have led to [child
pornography’s] proliferation over the past twenty years”); see
also 25 Fed. Sent. R. 334, 2013 WL 8171786, at *6
(discussing “dramatic technological changes related to
computers and the Internet over the past decade . . . which
have changed the way typical offenders today . . . distribute
child pornography”).
In the alternative, even if the majority’s definition of
“distribution” is accepted, I would hold that the District Court
12 Husmann undertook the same action with a requisite
knowledge of file sharing.
12
did not plainly err in denying Husmann’s Rule 29 motion to
enter a judgment of acquittal, because the evidence was
sufficient for the jury to find Husmann distributed child
pornography beyond a reasonable doubt. The majority finds
the District Court committed plain error by denying
Husmann’s motion for acquittal on the basis that the
government “did not present evidence that Husmann’s
attempts to distribute child pornography ever succeeded.”
Maj. Op. at 18. As the majority notes, because the issue of
sufficiency of the evidence as to “distribution” was raised for
the first time on appeal, we undertake plain error review. Id.
at 7 n.2. Plain error review requires the Appellant to
demonstrate: “(1) there was an error; (2) the error is clear or
obvious; and (3) the error affected the appellant’s substantial
rights, which in the ordinary case means it affected the
outcome of the district court proceedings.” Id. (quoting
United States v. Andrews, 681 F.3d 509, 517 (3d Cir. 2012)).
Thus, it would need to be clear or obvious that the District
Court erred in concluding that a reasonable jury could have
found that Husmann distributed child pornography.13
13 It must also be noted that no objection was made when at
trial, the District Judge charged the jury with the following
definition of “distribution”:
[T]he definition of distribution is if you find the
defendant knowingly placed images into the
sharing folder of a file sharing program, and if
you find that the defendant knew that placing
the files in that folder allowed others to gain
access to his folder and download those images
you may find the defendant guilty of
distribution.
13
Despite Husmann’s present claims to the contrary, the
testimony elicited could have allowed a rational jury to find
Husmann guilty for distributing child pornography. Jurors can
make reasonable inferences which naturally rise from the
evidence. See Ansell v. Green Acres Contracting Co., 347
F.3d 515, 525 (3d Cir. 2003). First, the jury could have
reasonably found Husmann uploaded the pornography into a
shared folder.14 Second, the jury could have found beyond a
(App. vol. II at 389a.)
14 Ample evidence was provided by the Government proving
Husmann uploaded the images. F.B.I. Forensic Agent Price
then testified the images uploaded by Husmann onto this
system were “shared.”
[ATTORNEY:] So looking at this document
here, can you tell if this [file] was actually
distributed and then uploaded?
[AGENT PRICE:] Yes, it is being shared by the
360 Share Pro for the online community to
download.
[ATTORNEY:] Do you have an expert opinion
whether that was successfully uploaded?
[AGENT PRICE:] I do.
(App. vol. II at 202a.) The testimony concluded with
confirmation the child pornography uploaded onto the file
sharing network was being “shared.” The thumb drive
contained images found in a folder titled “Artpics5.” (Id. at
264a.) These same pictures were found shared in 360 Share
Pro in a folder called “Adorablecuties.” (Id. at 261a, 264a.)
14
reasonable doubt that at least one of the many users with the
file sharing program downloaded the images Husmann made
globally available. This testimony included descriptions of
the global accessibility of peer-to-peer networks and the
contents of the shared folders:
[AGENT PRICE:] [LimeWire and 360 Share
Pro] are programs that are termed as peer-to-
peer sharing programs where there is no
centralized computer where the information is
stored.
Basically, anybody on the internet who
has access to the software can share files and
folders amongst all of the different users in the
world. It is a peer-to-peer system, there is not
centralized storage system of the files.
Agent Price testified these images were uploaded onto 360
Share Pro from a thumb drive.
[ATTORNEY:] [Y]ou can tell that this file is
uploaded on 360 Share Pro?
[AGENT PRICE:] Yes, it is being shared to the
online community.
[ATTORNEY:] On [Husmann’s] computer?
[AGENT PRICE:] Yes
[ATTORNEY:] And in your expert opinion it
was actually successful?
[AGENT PRICE:] Yes.
(Id. at 203a.)
15
(App. vol. II at 185a-186a (emphasis added).) He further
testified about the purpose of uploading an image:
[AGENT PRICE:] [Images are] being shared by
the 360 Share Pro for the online community to
download.
(Id. at 202a.) Finally, Agent Price testified that the specific
images were available for download through the peer-to-peer
network:
[ATTORNEY:] Can you tell [if] this image was
ever actually successfully uploaded?
[AGENT PRICE:] Yes.
....
[ATTORNEY:] And do you have a professional
opinion as to whether this was successfully
uploaded onto the internet?
[AGENT PRICE:] Yes.
....
[I]t was shared for all people to view and
download.
(Id. at 218a-219a (emphasis added).)
Proof beyond a reasonable doubt is met by the
“prosecution persuad[ing] the factfinder ‘beyond a reasonable
doubt’ of the facts necessary to establish all elements of the
offense.” United States v. Vazquez, 271 F.3d 93, 125 (3d Cir.
2001) (citing Sullivan v. Louisiana, 508 U.S. 275, 277–78
(1993)). Furthermore, the government, as verdict winner, is
entitled to “the benefit of all reasonable inferences capable of
being drawn therefrom, and an . . . interpret[ation of] the
evidence in the light most favorable to [it].” Hahn v. Atl.
16
Richfield Co., 625 F.2d 1095, 1099 (3d Cir. 1980) (citing
Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S.
690, 696 (1962)). Review of the record suggests enough
evidence was presented to allow the jury to find Husmann
guilty of a distribution crime that included the majority’s
requirement of a download. The District Court did not
“clear[ly] or obvious[ly]” err in denying Husmann’s motion
for acquittal. In sum, the evidence presented could have
allowed a rational jury to conclude, beyond a reasonable
doubt, that Husmann uploaded the images into his shared
folder, made images of child pornography available to a
global audience, and that at least one member of Husmann’s
global network downloaded them, thus “distributing” child
pornography as charged by the District Court.
At bottom, I find the majority’s definition of
“distribution” to be overly narrow in regards to the plain
meaning and purpose of 18 U.S.C. § 2252, or, in the
alternative, find the District Court did not commit plain error
because a rational jury could have found that a third party
downloaded the accessible pornography. Thus, for the
aforementioned reasons, I respectfully dissent.
17