Defining “Distribution”

Yesterday the 3rd Circuit issued an opinion in United States v. Hunsmann addressing the issue of whether “the mere act of placing child pornography materials in a shared computer folder, available to other users of a file sharing network, constitutes distribution of child pornography.”  The majority concluded it does not and vacates Hunsmann’s distribution conviction because it “cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder.”

The investigating FBI agent founds two file sharing programs installed on Hunsmann’s computer.  However, the agent could not identify when the files were loaded nor could he determine if the files were ever downloaded to another machine.  At trial, the government presented no evidence that anyone accessed, viewed, or downloaded files from his shared folder.  Hunsmann argued on appeal that placing the child porn in a shared folder, without anything more, does not amount to distribution under 18 U.S.C.A. § 2252A(a)(2).

The majority analyzed the definition of “distribution” (not defined in the statute) and concluded: “Because Congress has separately criminalized offering, promoting, and attempt 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 opinion went on to say “the decisions of our sister circuits provide support for our construction of the term ‘distribute,”” and cites the Tenth CIrcuit case, United States v. Shaffer, 472 F.3d 1219 (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.”). 

U.S. v. Shaffer upheld this jury instruction defining distribution: “To distribute something simply means to deliver or transfer possession of it to someone else.”  The dicta in that case implied that merely putting on a file-sharing site was enough, “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.”  Indeed, although there is the important factual distinction that Shaffer acknowledged to agents that he knew although users had downloaded shared pornography from his folder, I’m not sure that was the determinative factor for the court:

“Indeed, Mr. Shaffer admitted that he had downloaded child pornography from other users’ Kazaa shared folders and understood that file sharing was the very purpose of Kazaa. He admitted that he had child pornography stored in his computer’s Kazaa shared folder. Mr. Shaffer could have, but did not, save the illicit images and videos in a computer folder not susceptible to file sharing. Likewise, he could have, but did not, activate the feature on Kazaa that would have precluded others from taking materials from his shared folder. Quite the opposite. According to Special Agent Zimmer, Mr. Shaffer acknowledged that he knew other people had downloaded child pornography from his shared folder. Mr. Shaffer cannot recall making this particular admission, but we are obliged to view the facts in the light most favorable to the government, United States v. Bush, 405 F.3d 909, 919 (10th Cir.2005), and the jury was free to credit Special Agent Zimmer’s testimony and discredit Mr. Shaffer’s. According to Special Agent Zimmer, moreover, Mr. Shaffer confessed that he kept child pornography in his shared folder in order to win special concessions from Kazaa, concessions made only when others downloaded from his shared folder. And Special Agent Rochford had no trouble whatsoever picking and choosing for download images and videos from Mr. Shaffer’s child pornography collection.”

In fact, in the unpublished opinion United States v. Dayton, 485 Fed.Appx. 937 (10th Cir. 2012), the court stated, “[l]ike the defendant in Shaffer, the evidence presented at Mr. Dayton’s trial demonstrated that he, too, knowingly stored video files of child pornography in a folder used by a peer-to-peer network.”  In that case, the investigating agent downloaded files from Dayton’s Limewire account.

It remains to be seen whether the Tenth Circuit would apply Shaffer and extend the “knowingly stored” definition in a case like Hunsmann where there is no evidence that the porn was actually accessed or downloaded by anyone.  Or might the Tenth agree with the dissent in Hunsman:

“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.  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 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.”

For the full opinion click link above of go to Library>Child Pornography

Author: COFPD

Federal Public Defender's Office for the Districts of Colorado and Wyoming