United States v. William Dodd ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1946
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
William Ralph Dodd, *
*
Defendant - Appellant. *
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Submitted: January 15, 2010
Filed: March 11, 2010
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Before LOKEN, Chief Judge, JOHN R. GIBSON and WOLLMAN, Circuit Judges.
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LOKEN, Chief Judge.
William Ralph Dodd pleaded guilty to knowingly receiving and possessing
child pornography in violation of 18 U.S.C. §§ 2252(a)(2), (a)(4). The presentence
investigation report (PSR) recommended that his base offense level be increased by
two levels because the offenses involved distribution of child pornography and by
four levels because the offenses involved material portraying “sadistic or masochistic
conduct or other depictions of violence.” U.S.S.G. §§ 2G2.2(b)(3)(F), (b)(4).
Overruling Dodd’s objections, the district court1 imposed the enhancements, resulting
1
The HONORABLE JAMES E. GRITZNER, United States District Judge for
the Southern District of Iowa.
in an advisory guidelines range of 168 to 210 months in prison. The court granted a
downward variance and sentenced Dodd to 151 months in prison. Dodd appeals,
arguing that the court committed procedural error by imposing the enhancements. See
Gall v. United States, 552 U.S. 38, 51 (2007). Reviewing the district court’s
interpretation of the Guidelines de novo and its fact findings for clear error, we affirm.
See United States v. Griffin, 482 F.3d 1008, 1011 (8th Cir. 2007) (standard of review).
Investigating internet distribution of child pornography, a law enforcement
officer logged onto LimeWire, a peer-to-peer file sharing network, and conducted a
search using the term “preteen.” He connected to a responding internet address,
reviewed the list of files that user was sharing, and confirmed that at least two of the
files contained child pornography. The user was identified as Dodd. A warrant search
of Dodd’s home uncovered seventeen videos on his computer that contained child
pornography. He was charged with knowingly distributing, receiving, and possessing
child pornography. He pleaded guilty to knowing receipt and possession. The
distribution count was dismissed.
I. The Distribution Enhancement
The guidelines for child pornography offenses increase the base offense level
by different amounts for specified types of distribution, providing, for example, five-
level increases for distribution “for pecuniary gain” or “for the receipt . . . of a thing
of value.” U.S.S.G. § 2G2.2(b)(3)(A)-(B). The two-level increase here at issue applies
if the offense involved distribution “other than distribution described in subdivisions
(A) through (E).” § 2G2.2(b)(3)(F).
Dodd’s PSR explained that peer-to-peer file sharing programs “allow internet
users to share files on their computers with others utilizing the same program. A user
can obtain files from other users’ computers and allow other users to obtain files from
his/her computer. In order to share one’s files, the user must place them in a folder
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which is ‘shared’ with others.” In this case, an investigator connected to Dodd’s
internet address by using this software to search the term “preteen,” and determined
that at least two of the files the user made available for downloading by other users
of the program contained child pornography. The PSR recommended a two-level
increase “[b]ecause the defendant distributed the material to another person.”
Dodd objected to the increase. Without objecting to the PSR’s generic
description of file sharing programs, or its description of the manner in which the
investigator accessed child pornography on Dodd’s computer, Dodd asserted “that he
never made this material available for public viewing, nor did he have any intent to
distribute after he downloaded [the child pornography].” Thus, it is undisputed that
an investigator using a file sharing program on the internet accessed and downloaded
child pornography stored on Dodd’s computer.
Neither side presented evidence on this issue at the sentencing hearing. Dodd
argued, as he does on appeal, that the distribution enhancement is inappropriate when
“there is absolutely no evidence that the defendant was aware that files downloaded
to his saved file are available automatically to others.” The government argued that
LimeWire “is set up for the sole purpose of sharing files,” and “affirmative steps must
be taken in setting up that . . . system” to make the files in the shared folder available
to others. “It doesn’t happen by mistake and it doesn’t happen by accident.” The
district court overruled Dodd’s objection, concluding that prior Eighth Circuit cases
establish that this increase applies if a file sharing device is set up so that child
pornography is available to others with or without further activity by the defendant.
The leading Eighth Circuit case on this issue is United States v. Griffin, 482
F.3d 1008 (8th Cir. 2007). The primary issue in Griffin was the five-level increase for
distribution “for the receipt, or the expectation of receipt, of a thing of value.”
§ 2G2.2(b)(3)(B). However, before reaching that issue, we concluded that the
defendant in Griffin “was engaged in the distribution of child pornography” because
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his “use of the peer-to-peer file-sharing network made the child pornography files in
his shared folder available to be searched and downloaded by other Kazaa users as
evidenced by the partially downloaded file recovered by Danish authorities.” 482
F.3d at 1012. Dodd urges us to distinguish Griffin because the defendant in that case
admitted “he downloaded child pornography files from Kazaa, knew that Kazaa was
a file-sharing network, and knew that, by using Kazaa, other Kazaa users could
download files from him,” whereas Dodd made no such admissions. Id. at 1013,
We conclude that the district court properly applied Griffin to the two-level
distribution increase here at issue for two reasons. First, this is a fact-intensive
inquiry. Thus, the issue is whether the district court clearly erred in finding by a
preponderance of the evidence that Dodd distributed child pornography. In the plea
agreement, Dodd admitted that he “knowingly and intentionally downloaded [child
pornography] from the internet and stored these visual depictions on the hard drive of
his computer.” It is undisputed that he stored the downloaded material in a LimeWire
folder shared with others. One can hypothesize, as defense counsel has vigorously
argued, that even a defendant who pleaded guilty to knowing receipt and possession
might have no knowledge that his computer was equipped to distribute. But the
purpose of a file sharing program is to share, in other words, to distribute. Absent
concrete evidence of ignorance -- evidence that is needed because ignorance is entirely
counterintuitive -- a fact-finder may reasonably infer that the defendant knowingly
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employed a file sharing program for its intended purpose.2 As the Tenth Circuit said
in United States v. Shaffer, 472 F.3d 1219, 1223-24 (10th Cir. 2007):
We have little difficulty in concluding that Mr. Shaffer distributed
child pornography in the sense of having “delivered,” “transferred,”
“dispersed,” or “dispensed” it to others. He may not have actively
pushed pornography on Kazaa users, but he freely allowed them access
to his computerized stash of images and videos and openly invited them
to take, or download, those items. It is something akin to the owner of
a self-serve gas station. The owner may not be present at the station, and
there may be no attendant present at all. . . . But the owner has a roadside
sign letting all passersby know that, if they choose, they can stop and fill
their cars for themselves . . . . So, too, a reasonable jury could find that
Mr. Shaffer welcomed people to his computer and was quite happy to let
them take child pornography from it.
Second, the district court’s ruling is consistent with the plain language of
§ 2G2.2, which broadly defines the term “distribution” as “any act, including
possession with intent to distribute, production, advertisement, and transportation,
related to the transfer of material involving the sexual exploitation of a minor.”
U.S.S.G. § 2G2.2, comment. (n.1). Effective November 1, 2009, the Commission
added a clarifying sentence to this definition: “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.”
2
In Griffin, we affirmed imposition of the five-level increase for distribution
“for the receipt, or the expectation of receipt, of a thing of value.” 482 F.3d at 1013.
Responding to criticism of Griffin in United States v. Geiner, 498 F.3d 1104, 1111
(10th Cir. 2007), our decisions applying Griffin have made clear that the government
must prove that defendant expected to receive a thing of value on a case-by-case basis,
but the issue can be proved by circumstantial evidence. See United States v. Ultsch,
578 F.3d 827, 830 (8th Cir. 2009); United States v. Stults, 575 F.3d 834, 849 (8th Cir.
2009), cert. denied, 2010 WL 251487 (U.S. Jan. 25, 2010). The same analysis applies
to the two-level distribution enhancement.
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U.S.S.G. Supp. to App. C, Amendment 664, at pp. 49, 60. The Microsoft Computer
Dictionary defines “post” as meaning, “To place a file on a server on a network or on
a Web site.” 5th ed. at 414. “Network” is defined as, “A group of computers . . .
connected by communications facilities.” Id. at 362. “Server” is defined as, “On the
Internet . . . a computer or program that responds to commands from a client.” Id. at
474. These definitions confirm that distribution as defined in § 2G2.2 includes
operating a file sharing program that enables other participating users to access and
download files placed in a shared folder, and then placing child pornography files in
that folder.
II. The Sadistic/Violent Material Enhancement
The child pornography guideline provides for a four-level increase “[i]f the
offense involved material that portrays sadistic or masochistic conduct or other
depictions of violence.” U.S.S.G. § 2G2.2(b)(4). Citing United States v. Diaz, 368
F.3d 991 (8th Cir. 2004), the PSR recommended imposing this increase because -
Eight videos depicted minors, some prepubescent, engaged in sexual
conduct with adults or other minors. The depicted conduct included, but
was not limited to, vaginal sex, anal sex, oral sex, digital penetration, and
manual stimulation. Specifically, one of these videos depicted an adult
male engaged in vaginal intercourse with a prepubescent female.
The district court overruled Dodd’s objection and imposed the increase, finding that
a depiction of an adult penetrating a child “in and of itself” constitutes sadistic,
masochistic, or violent conduct.
On appeal, Dodd does not deny that one video found on his computer depicted
an adult male vaginally penetrating a prepubescent female. Rather, he argues that
Diaz did not hold that a depiction of vaginal intercourse between an adult male and
a female child qualifies, per se, for the § 2G2.2(b)(4) enhancement. Therefore, the
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district court committed procedural error by not undertaking a fact-specific analysis
to determine if a particular video is “sufficiently painful, coercive, abusive, and
degrading” to warrant the increase. United States v. Parker, 267 F.3d 839, 847 (8th.
Cir. 2001) (reversing denial of an increase because of the “violent and depraved nature
of the images” in question), cert. denied, 535 U.S. 1011 (2002).
The guideline does not define sadistic, masochistic, or violent conduct. See
U.S.S.G. § 2G2.2, comment. (n.2). In Diaz, we held that various images “are sadistic
or depictions of violence within the meaning of § 2G2.2(b)(3) [now (b)(4)],”
describing one of those images as depicting “the sexual penetration of a minor girl by
an adult male with his penis.” 368 F.3d at 992. Diaz cited favorably decisions from
other circuits holding that images of “adult males engaging in vaginal intercourse with
prepubescent females” are sadistic or violent within the meaning of this provision.
United States v. Lyckman, 235 F.3d 234, 237, and cases cited at 238-39 (5th Cir.
2000), cert. denied, 532 U.S. 986 (2001). In United States v. Belflower, we held “that
images of an adult [male] attempting” sexual penetration of a minor girl are “sadistic”
or “violent” for purposes of § 2G2.2(b)(4). 390 F.3d 560, 562 (8th Cir. 2004)
(emphasis in original). The district court properly applied Diaz and Belflower, which
are binding on our panel. United States v. Alama, 486 F.3d 1062, 1067 (8th Cir.
2007).
For these reasons, we conclude that the district court committed no procedural
error in determining Dodd’s advisory guidelines sentencing range. As this is the only
issue raised on appeal, the judgment of the district court is affirmed.
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