Filed: Dec. 28, 2009
Latest Update: Feb. 22, 2020
Summary: images of child pornography discovered on Dyer's computer and CDs.United States v. Johnson, 221 F.3d 83, 98 (2d Cir. This distinction is crucial in this case because the, less culpable conduct of possession bleeds into the more serious, conduct of trafficking on the basis of criminal intent.
United States Court of Appeals
For the First Circuit
No. 08-1343
UNITED STATES,
Appellee,
v.
MARK DAVID DYER,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Ripple*, Circuit Judges.
William S. Maddox for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney was on brief, for appellee.
December 28, 2009
*
Of the Seventh Circuit, sitting by designation.
LYNCH, Chief Judge. At issue is the meaning and
application of a 2003 Sentencing Guideline for possessing child
pornography, § 2G2.4(c)(2), which instructed sentencing judges to
apply the stiffer penalties for trafficking in child pornography
cases "[i]f the offense involved trafficking in material involving
the sexual exploitation of a minor . . . including . . . possessing
material involving the sexual exploitation of a minor with intent
to traffic." U.S.S.G. § 2G2.4(c)(2). The issue is one of first
impression for this circuit. The defendant, Mark David Dyer,
primarily argues that the sentencing judge erred in determining
that the evidence sufficed to establish he had an intent to traffic
in child pornography under § 2G2.4(c)(2) of the 2003 Sentencing
Guidelines, thus adding a minimum of thirteen additional months to
the defendant's Sentencing Guidelines range. Despite this, the
trial judge exercised his discretion to sentence below the range,
and sentenced Dyer to sixty months in prison, followed by eight
years of supervised release.
Dyer pleaded guilty to possession of child pornography,
in violation of 18 U.S.C. § 2252(A)(a)(5)(B). The original
guideline range for the total offense level under possession was
fifty-seven to seventy-one months; the application of the
trafficking guideline made it seventy to eighty-seven months. Dyer
argues on appeal that the district court wrongly interpreted and
applied § 2G2.4(c)(2), the trafficking cross-reference.
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He also argues that the district court relied upon ex
parte grand jury testimony to reach its factual conclusions and
thereby violated his rights under the Confrontation Clause.
We disagree with both arguments and affirm his sentence
based on the facts of this case.
I.
The basic facts are undisputed. On June 4, 2004, agents
of the Federal Bureau of Investigation (FBI) executed a warrant to
search the Brunswick, Maine residence of Mark David Dyer. The
agents seized a computer hard drive and ten compact disks (CDs),
all of which were later found to contain numerous images of child
pornography.
Later that day, Dyer consented to an interview with
Special Agents James Lechner and Paul Pritchard. Dyer told them
that he owned the computer and the CDs and that no one else had
access to them. The CDs, Dyer conceded, contained images that
would likely qualify as child pornography. He admitted that he had
downloaded what he estimated to be several thousand nude pictures
of twelve- or thirteen-year-old girls, had saved these images on
his computer, and had burned them onto CDs. He obtained these
images, he told Agents Lechner and Pritchard, either by temporarily
joining subscription-only websites or through the use of the
LimeWire peer-to-peer file-sharing program. Dyer used these
methods once or twice a week to obtain new pornographic images of
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prepubescent girls aged fourteen or younger. When asked about a
notebook seized during the search, Dyer explained that he had used
it to list common keywords like "pedo," "teen," and "pre-teen" that
he entered into LimeWire to find new files.
Dyer had used LimeWire for two years and explained his
understanding of the program to Agents Lechner and Pritchard. He
knew, he said, that when he downloaded photographs or videos from
LimeWire, the program saved the files in a "Completed Folder" on
his hard drive. This folder, Dyer noted, was automatically treated
as a "shared" folder by the LimeWire software. Dyer knew that
anything he downloaded would therefore be available for other
LimeWire users to keyword search and download. He also knew how to
stop the material from getting to other LimeWire users. To prevent
this file folder from being shared with other users, Dyer added, he
would have had to transfer the file to another location on his hard
drive. He had not done so.
Forensic analysis of Dyer's computer and CDs revealed
several hundred images of what appeared to be child pornography.
When the National Center for Missing and Exploited Children (NCMEC)
analyzed the images at the FBI's request, it determined that Dyer
had downloaded 952 photographs and four videos featuring known and
actual child victims of sexual exploitation.
The most graphic of these images was a series featuring
a single prepubescent girl. The NCMEC confirmed, and Dyer did not
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dispute, that the girl featured in these images was an actual child
and a known victim of sexual abuse. One of the photographs in the
series showed an adult male urinating on the young girl. In
another photograph, the girl had been posed on a bed naked, with
the words "cut me," "hurt me," and "slut" written across her torso.
The image also showed someone holding a knife near her vagina.
This image was saved under the file name "PTHC, Ultra Hard Pedo
Child Porn Pedofilia (New) 061.JPEG." Dyer had stored the entire
series featuring the girl in the "shared" folder on his computer
hard drive, making it available to all LimeWire users.
Other files in Dyer's "shared" folder had titles such as
"pthc_kely&camila07 young girls rub pussies together.jpg"; many
included the acronym "pthc," standing for "pre-teen hard-core," in
the title.
An August 22, 2007 indictment charged Dyer with knowingly
possessing child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B).1 On November 28, 2007, Dyer pleaded guilty to
this charge in the federal district court of Maine.
The court applied the 2003 version of the Sentencing
Guidelines in order to avoid ex post facto considerations. The
pre-sentence report (PSR) submitted to the district court
calculated a total offense level of 25 under the 2003 Sentencing
1
The government also charged Dyer with transportation of
child pornography but ultimately asked the trial judge to dismiss
this count.
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Guidelines. The PSR used U.S.S.G. § 2G2.4, which applied to
defendants convicted of possession of child pornography and carried
a base offense level of 15, and adjusted the sentence upwards to
reflect a number of relevant enhancements.2
At the pre-sentence conference, the government argued
that the PSR should have applied the trafficking cross-reference in
U.S.S.G. § 2G2.4(c)(2) and should have therefore used the
trafficking provision rather than the possession provision to
calculate Dyer's base offense level for sentencing. The sentence
enhancement under the trafficking cross-reference should have been
imposed, the government contended, because Dyer had manifested an
intent to distribute the child pornography on his computer by
making it accessible to other LimeWire users. Dyer argued that
leaving files on a shared computer folder did not qualify as
"trafficking" and that, in any event, there was insufficient
evidence that he had intended to traffic in child pornography.3
At the sentencing hearing on March 13, 2008, Agent
Lechner testified and was cross-examined regarding his interview
2
Specifically, the PSR calculated a two-level enhancement
for materials involving a prepubescent minor, another two-level
enhancement for possession involving the use of a computer, a four-
level enhancement for possession of images involving sadism and
masochism, and a five-level enhancement for possession of over 600
images. The PSR also adjusted for Dyer's acceptance of
responsibility, resulting in a final offense level of 25.
3
Dyer also contested the recommended enhancements for
possession of sadistic images and for possession of more than 600
images. He does not, however, challenge these enhancements, which
the court applied, on appeal.
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with Dyer. Lechner described his role in the search of Dyer's
residence, his subsequent interview with Dyer, and the FBI's
ultimate conclusions regarding the quantity and nature of the
images of child pornography discovered on Dyer's computer and CDs.
He testified that Dyer had said during the interview that he
understood that the child pornography downloaded onto his shared
drive would be made available to other LimeWire users. The
government also introduced Lechner's contemporaneous report of the
interview into evidence. The report included Dyer's admission that
he knew how to prevent the files from being shared. He had opted
not to disable this feature. Another exhibit displayed the results
of the forensic analysis of Dyer's computer and a selection of the
more graphic images discovered in Dyer's "shared" folder. Dyer did
not introduce any evidence at sentencing.
On the basis of this evidence and a Fifth Circuit case
involving similar facts, United States v. Todd, 100 F. App'x 248
(5th Cir. 2004), the district court applied the trafficking cross-
reference in U.S.S.G. § 2G2.4(c)(2). However, it did so on the
basis of the specific facts of the case and implicitly rejected the
government's argument that any use of LimeWire would automatically
constitute trafficking due to the program's file-sharing features.
"Trafficking," the sentencing judge noted, included bartering, and
Dyer had exhibited an "intent to traffic" by knowingly making
images of child pornography available to other LimeWire users. The
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sentencing judge emphasized the facts essential to this conclusion:
Dyer had told Agent Lechner that he knew that any file downloaded
from LimeWire would be available to other users; he knew where
LimeWire stored the files he downloaded on his computer, and that
they could be accessed and downloaded by other LimeWire users; he
knew that he could have moved the file to a different location to
prevent other users from accessing it; and he had used LimeWire for
two years, during which he downloaded files and had his own files
available for download. These acts, the sentencing judge found,
demonstrated an intent to traffic within the meaning of
§ 2G2.4(c)(2). The sentencing judge also determined that this
conclusion was consistent with Congress's intention to punish those
who furthered the market for child pornography more severely,
reasoning that file-sharing was qualitatively different from mere
possession of files on an inaccessible computer hard drive
location.
In calculating Dyer's sentence, the sentencing judge
emphasized that Dyer had pleaded guilty to an exceptionally serious
offense that involved the sexual abuse of real children. But the
sentencing judge also acknowledged that Dyer had received an
honorable discharge from the United States Navy and was a first-
time offender who had shown remorse and a willingness to undergo a
sex offender treatment program. Dyer's total offense level under
the Guidelines was twenty-seven, which would ordinarily result in
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a prison sentence of between seventy and eighty-seven months.
However, in light of Dyer's character and circumstances, the
sentencing judge imposed a below-Guidelines sentence of sixty
months in prison, followed by eight years of supervised release.
Dyer now appeals this sentence.
II.
A. Interpretation of Guidelines Terms
Dyer's main argument on appeal is that the facts of his
case supported only the application of the guidelines pertaining to
possession of child pornography, and not "trafficking." The
district court's interpretation of the meaning of an "intent to
traffic" under § 2G2.4(c)(2) and of the cross-reference are
questions of law, which we review de novo. See United States v.
Cruz-Rodriguez, 541 F.3d 19, 32 (1st Cir. 2008). We review the
district judge's findings of fact for clear error, and the
government must prove facts essential to sentencing enhancements by
a preponderance of the evidence.
Id. at 31 & n.8.
The issue before us is not whether mere use of LimeWire
by one who possesses child pornography shows an intent to traffic
simply because LimeWire is a file-sharing program. The government
has withdrawn that argument and the district court did not adopt
it. Rather, the outcome of this case depends upon the particular
facts and not on a per se rule. Dyer's challenge raises issues of
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interpretation of both "intent" and "traffic," but ultimately turns
on the facts.
The Guidelines set forth a distinction between
"possession" of and "trafficking" in child pornography as those
terms are used in U.S.S.G. §§ 2G2.4 and 2G2.4(c)(2). Dyer suggests
a series of limitations on the definition of trafficking, which we
reject. To define the kind of acts that constitute "trafficking"
as opposed to mere possession, we employ ordinary rules of
statutory construction. See United States v. Luna-Diaz, 222 F.3d
1, 3-6 (1st Cir. 2000) (looking to the text, guideline commentary,
statutory context, and use of similar language in criminal statutes
to interpret the meaning of a term in U.S.S.G. § 2L1.2); United
States v. DeLuca,
17 F.3d 6, 10 (1st Cir. 1994) (holding that the
Sentencing Guidelines should be interpreted according to principles
of statutory construction).
The text of the 2003 Sentencing Guidelines separated
sentencing for the possession and trafficking of child pornography
into two distinct subsections. Sentencing judges were to apply
U.S.S.G. § 2G2.2 to defendants convicted of trafficking in child
pornography; receiving, transporting, shipping, or advertising such
material; or possessing such material with an intent to traffic.
This guideline carried a base offense level of 17. U.S.S.G.
§ 2G2.2. By contrast, U.S.S.G. § 2G2.4 prescribed a base level of
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15 for defendants convicted only of possessing child pornography.
U.S.S.G. § 2G2.4, subject to the condition we describe next.
The condition is that a cross-reference in the possession
guideline, § 2G2.4(c)(2), mandated that "[i]f the offense involved
trafficking in material involving the sexual exploitation of a
minor (including receiving, transporting, shipping, advertising, or
possessing material involving the sexual exploitation of a minor
with intent to traffic)," then the sentencing judge was to use
§ 2G2.2, the trafficking guideline, instead. U.S.S.G.
§ 2G2.4(c)(2).4
As a result, the plain language of § 2G2.4(c)(2)
unambiguously extended the trafficking cross-reference both to
defendants who actually trafficked in child pornography and to
defendants who possessed child pornography with the intent of
trafficking but had not yet completed the act. In other words,
this trafficking cross-reference, by its terms, could be imposed
even absent evidence that others received child pornography from
the defendant.
4
Subsequent amendments to the Guidelines consolidated
these offenses into a single subsection, with provisions for
sentencing enhancements and reductions depending upon the extent to
which a defendant's conduct went beyond mere possession. See
U.S.S.G. § 2G2.2 (2004) (Trafficking in Material Involving the
Sexual Exploitation of a Minor; Receiving, Transporting, Shipping,
Soliciting, or Advertising Material Involving the Sexual
Exploitation of a Minor; Possessing Material Involving the Sexual
Exploitation of a Minor with Intent to Traffic; Possessing Material
Involving the Sexual Exploitation of a Minor).
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The government needs only to demonstrate by a
preponderance of the evidence that a defendant possessed the
requisite "intent to traffic." See, e.g., United States v. Jordan,
111 F. App'x 65, 68 (2d Cir. 2004). Dyer unsuccessfully advances
limitations, not in the text, on what "intent" means and on what
"traffic" means. We, like the Second Circuit in Jordan, reject
Dyer's argument that the cross-reference in § 2G2.4(c)(2) governed
only when the government proved that the defendant actually engaged
in trafficking and did not merely intend to do so.5 We also reject
Dyer's argument that the government must show that third parties
actually retrieved and downloaded images from defendant's computer
to show that the defendant had an intent to traffic.
First we address the legal arguments about the meaning of
the terms "traffic" and "intent"; we then turn to whether, in light
of those meanings, the facts sufficed to meet those definitions.
1. Meaning of "Traffic" under § 2G2.4(c)(2)
Because the 2003 Guidelines do not define the term
"traffic," we interpret this word by looking to its commonly
accepted meaning. See DeLuca, 17 F.3d at 9. To traffic in
something commonly means [t]o "trade or deal in (goods, esp.
5
While Jordan was an unpublished Second Circuit opinion,
we consider it to be persuasive authority since it squarely
addressed the same argument made by the defendant in the present
appeal. See Sec. Ins. Co. of Hartford v. Old Dominion Freight
Line, Inc., 314 F. Supp. 2d 201, 203 n.1 (S.D.N.Y. 2003) (treating
Second Circuit unpublished opinions "at least" equivalent in
authority to law review notes).
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illicit drugs or other contraband)," Black's Law Dictionary 1634
(9th ed. 2009), or to engage in "the activity of exchanging
commodities by bartering or buying and selling," Webster's Third
New International Dictionary 2422 (1993).
At oral argument, defendant argued that mere trading or
bartering of child pornography is not trafficking. We reject the
argument. We also reject the argument that a defendant must expect
some financial gain from trafficking. In the context of
§ 2G2.4(c)(2), a defendant traffics in child pornography if he
engaged or intended to engage in an exchange or trade of such
images. No financial gain or expectation of financial gain is
necessarily required. See United States v. Todd, 100 F. App'x 248,
250 (5th Cir. 2004), vacated on other grounds,
543 U.S. 1108 (2005)
(noting that "trafficking" ordinarily means "both buying and
selling commodities for money and exchanging commodities by
barter"); United States v. Parmelee,
319 F.3d 583, 594 (3d Cir.
2003) (observing that "trafficking" under § 2G2.2 includes
bartering); United States v. Johnson,
221 F.3d 83, 98 (2d Cir.
2000) (same); United States v. Horn,
187 F.3d 781, 791 (8th Cir.
1999) ("Section 2G2.2 and the cross reference in § 2G2.4(c)(2)
apply when the offense involved the exchange or barter of [child
pornography], and not only . . . when this material was offered for
sale."). These cases confirm that the crucial acts separating mere
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possession from trafficking involve the intent to share images of
child pornography with others, irrespective of financial motive.
This interpretation is also borne out by the legislative
history of the 1977 Protection of Children Against Sexual
Exploitation Act (Act), which was amended in 1996 to include 18
U.S.C. § 2252A. See Child Pornography Prevention Act of 1996, Pub.
L. No. 104-208, 121, 110 Stat. 3009, 3009-26 to 3009-4 (codified as
amended in 18 U.S.C. § 2251, 2252-2252A, 2256 and 42 U.S.C.
§ 2000aa); see also United States v. Sromalski, 318 F.3d 748, 751-
52 (7th Cir. 2003) (finding that § 2G2.2 and related guidelines
should be interpreted in relation to the harms Congress identified
when passing this Act). Section 2252A includes separate
subsections prohibiting the distribution, sale, and possession of
child pornography, with a further section prohibiting the
distribution of child pornography to minors with the intent of
inducing them to participate in illegal activities. See 18 U.S.C.
§ 2252A(a)(1)-(6). For purposes of punishment, § 2252A(b)
distinguishes between possession and all other offenses, mandating
a maximum sentence of 10 years for possession and a sentence
between five and twenty years for all other offenses. See
id.
§ 2252(b)(1)-(2).
The rationale underpinning the 1996 amendments, Congress
said, was that the dissemination and production of child
pornography differs from possession because active participation in
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the market for child exploitation encourages further exploitation
of children to an even greater degree. See H.R. Rep. No. 104-863,
at 28-29 (1996) (Conf. Rep.); see also United States v.
Grosenheider, 200 F.3d 321, 332-33 (5th Cir. 2000) (footnote
omitted) ("It is clear that Congress established a series of
distinctly separate offenses respecting child pornography, with
higher sentences for offenses involving conduct more likely to be,
or more directly, harmful to minors than the mere possession
offense. Similarly, the guidelines clearly reflect consideration
of whether and the degree to which harm to minors is or has been
involved.").
Congress further found that child pornography victimizes
children not only at the time of actual abuse but each time the
image is accessed and distributed anew, since "its continued
existence causes the child victims of sexual abuse continuing harm
by haunting those children in future years." H.R. Rep. No. 104-
863, at 28. By this metric, trafficking is qualitatively different
from mere possession--and warrants heavier sanctions. It makes
these images available to new viewers and keeps an image of
exploitation in circulation, and thus may encourage the growth of
a market leading to further exploitation. See New York v. Ferber,
458 U.S. 747, 756-59 & n.10 (1982); United States v. Hoey,
508 F.3d
687, 692-93 (1st Cir. 2007).
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Second, the legislative history unequivocally shows that
"trafficking" in child pornography means bartering these materials
even when no financial stake is involved. In 1984, Congress
expressly found that the child pornography market was dominated by
collectors who bartered pornographic images to expand their
collections and had little interest in trading for profit. See
H.R. Rep. No. 98-536, at 16-17 (1984); see also United States v.
Morales-De Jesús, 372 F.3d 6, 11 (1st Cir. 2004) (explaining that
Congress eliminated the commercial purpose requirement because of
the prevalence of child pornography distributors who shared images
with each other with no pecuniary motivation). Concerned that the
Act was being under-enforced, Congress amended the statute
specifically to ensure that it extended to these collectors. See
Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204
(codified as amended at 18 U.S.C. §§ 2251, 2252, 2253); see also
H.R. Rep. 98-536 at 2 (1983). Because "the harm to the child
exists whether or not those who initiate or carry out the schemes
are motivated by profit," Congress deliberately broadened the scope
of the Act to better serve its purpose. H.R. Rep. 98-536, at 2-3.6
6
As we observed in Morales-De Jesús, we consider the
legislative history and the congressional findings of prior
iterations of the Act relevant to its present meaning, since "when
Congress previously passed related legislation accompanied by
applicable findings, subsequent legislation was 'presumably based
on similar findings and purposes with respect to the areas newly
covered.'" 372 F.3d at 10 n.2 (quoting Maryland v. Wirtz,
392 U.S.
183, 190 n.13 (1968)).
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Based on this analysis, we conclude that the district
court properly interpreted the trafficking cross-reference under
§ 2G2.4(c)(2) to include situations in which a defendant intended
to exchange child pornography without any commercial purpose.
2. Meaning of "Intent" Under § 2G2.4(c)(2)
Before the district court, Dyer never used the term
"specific intent" to set forth the legal requirements for applying
§ 2G2.4(c)(2), and has waived the argument. As a result, the
district court did not directly comment on the meaning of the term
"intent" as used in § 2G2.4(c)(2). It rather concluded that in
light of the specific facts concerning Dyer's use of LimeWire, the
intent requirement had been met. Dyer raises for the first time on
appeal the argument that § 2G2.4(c)(2) requires evidence of
specific intent, but only in passing and without any legal argument
to support this assertion. This argument is twice waived on
appeal. We accordingly review it for plain error. We find there
was no error of law, and we reject a reading of § 2G2.4(c)(2) that
would require specific intent to traffic in child pornography.
This court recently emphasized the challenges in defining
the term "intent" when it is used to denote an element of a crime.
See United States v. Tobin, 552 F.3d 29, 32 (1st Cir. 2009) ("'Few
areas of criminal law pose more difficulty than the proper
definition of the mens rea required for any particular crime.'")
(emphasis original) (quoting United States v. Bailey, 444 U.S. 394,
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403 (1980)). In Tobin, we interpreted "intent" as used in a
criminal statute prohibiting harassing phone calls by employing
principles of statutory construction and looking to plain meaning,
statutory structure, and legislative history. When these indicia
were inconclusive, we turned to "general considerations," namely
the principle that for most crimes, "intent" ordinarily requires
only that the defendant reasonably knew the proscribed result would
occur (general intent), not that the defendant specifically
intended such an outcome as his purpose (specific intent). Id. at
33 (citing
Bailey, 444 U.S. at 404); see also United States v.
Pitrone,
115 F.3d 1, 5 (1st Cir. 1997) (observing and applying the
rule that when the text of a criminal statute is indeterminate,
courts should look to context, including purpose, legislative
history, and "background legal principles," to discern the kind of
intent Congress had in mind).
We then reasoned that this principle that "intent"
ordinarily means general intent would have less force in some
situations where the consequences of the action are not necessarily
wrong or harmful. Thus, when interpreting 47 U.S.C.
§ 223(a)(1)(D), which prohibits making repeated phone calls to the
same number with an intent to harass, Tobin held that the
government must prove the defendant specifically intended to harass
the person at the called number because "[t]here is nothing
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inherently wicked or even suspect about multiple phone calls"
absent the wicked intention motivating them. Id.
"Intent" has at least two possible ordinary meanings in
the criminal context, referring either to the fact that a defendant
purposefully and affirmatively desired an unlawful outcome or,
alternatively, to a defendant's reasonable knowledge that his acts
might result in such an outcome. See
Bailey, 444 U.S. at 403-04.
The texts of § 2G2.4 and § 2G2.2 are not explicit on what
kind of scienter requirement the Commission intended. While
§ 2G2.2 pertains to trafficking and § 2G2.4 is predominantly
concerned with possession, both guidelines penalize conduct that
Congress has deemed inherently harmful. That the Guidelines
enhance punishment for both actual trafficking and for intent to
traffic suggests the Commission intended to enhance penalties for
those whose actions support the market for child pornography and
for those who should reasonably know that their conduct would do
so. There is no indication that the Commission intended to depart
from the ordinary meaning of the term "intent." Further, there is
every reason to think the Commission was, in this understanding of
intent, carrying out congressional intent. Certainly, the
Commission chose not to use alternate language which would have
required specific intent.
The dissent incorrectly argues that the phrase "with
intent to" is a term of art that mandates the conclusion that
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§ 2G2.4(c)(2) requires proof that a defendant specifically intended
to traffic in child pornography. That argument is undercut by
Bailey, which noted that "the word 'intent' is quite ambiguous"
when interpreting what the court of appeals had meant when using
that precise phrase. 444 U.S. at 633. The use of the words
"intent to traffic" does not by itself signify specific intent, as
numerous other courts have found in other contexts. For instance,
18 U.S.C. § 2320 punishes anyone who, inter alia, "intentionally
traffics or attempts to traffic in goods or services and knowingly
uses a counterfeit mark on or in connection with such goods or
services." 18 U.S.C. § 2320(a)(1). Other circuits have held that
specific intent was not required for culpability, on the grounds
that specific intent requirements are not ordinarily prerequisites
in criminal offenses and the legislative history did not support
such an interpretation. See, e.g., United States v. Gantos,
817
F.2d 41, 42-43 (8th Cir. 1987). Likewise, the Second Circuit has
interpreted 18 U.S.C. § 479, which makes it a crime to "knowingly
and with intent to defraud, utter[], pass[], or put off, in payment
or negotiation, any false, forged, or counterfeited" foreign bonds,
only as a general intent crime. See United States v. Mucciante,
21
F.3d 1228, 1235 (2d Cir. 1994).7
7
One circuit has also held that 18 U.S.C. § 115(a)(1)(B),
which prohibits threats of assault, kidnaping, or murder against
federal officials, judges, and law enforcement officers "with
intent to" inhibit their official duties or "with intent to"
retaliate against them, is a general or specific intent crime. See
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Indeed, treating such language as per se imposing a
specific intent requirement runs counter to the careful, context-
specific weighing of text, structure, legislative history, and
general considerations that we have long employed and is contrary
to our analysis in Tobin.
The legislative history, in turn, supports a reading that
intent in the sense of knowledge suffices. Congress described the
evils of the child pornography market by focusing on the child
victims involved, not by distinguishing between the motives of
purveyors. Trafficking in child pornography has an equally
horrific effect upon the children involved irrespective of whether
the trafficker actively desires or merely knows that his actions
will likely make images of child pornography more available to
others. That Congress eliminated the requirement that traffickers
in child pornography could only be prosecuted if they were acting
with a commercial purpose underscores Congress' understanding that
such conduct is culpable regardless of the underlying motive. See
H.R. Rep. 98-536, at 16-17.
We also turn to the "general considerations" explained in
Tobin. These considerations strongly confirm that § 2G2.4(c)(2)
does not require specific, purposeful intent. We should instead
rest upon the default assumption discussed in Bailey and elsewhere
United States v. Ettinger, 344 F.3d 1149, 1156 (11th Cir. 2003);
but see United States v. Veach,
455 F.3d 628, 631-32 (6th Cir.
2006) (requiring specific intent); United States v. Stewart,
420
F.3d 1007, 1017 (9th Cir. 2005) (same).
-21-
that an intent to traffic in child pornography, like most other
crimes, requires only general intent. Unlike the repeated phone
calls at issue in Tobin, sharing child pornography qualifies as
inherently bad conduct. Indeed, Tobin itself makes this exact
distinction. Another subsection of the statute at issue in Tobin
prohibited making phone calls if those calls involved content that
could be considered child pornography, with the intent to harass
another person. Tobin stated that this subsection "involve[d]
suspicious or even malign conduct" and concluded that unlike the
provision at issue, "intent" in this subsection meant only "mere
knowledge of consequences." Tobin, 552 F.3d at 33.8
Further, courts are ordinarily concerned with the
distinction between specific and general intent when defining
elements of a crime in order to put defendants on notice of where
the line between culpable and innocent conduct falls. See, e.g.,
Carter v. United States, 530 U.S. 255, 268-69 (2000). No such
concern applies at sentencing. Courts routinely interpret the
Sentencing Guidelines by looking at related conduct beyond the
specific elements of a criminal offense, because the purpose is to
8
While we have recognized that the crime of possession of
a controlled substance with intent to distribute requires proof
that the defendant specifically and purposefully intended to
traffic in drugs, that conclusion resulted from statutory language
that includes the phrase "knowingly or intentionally" and by
concerns with overbreadth. See, e.g., United States v. Hassan, 542
F.3d 968, 979 (2d Cir. 2008); United States v. Caseer,
399 F.3d
828, 839 (6th Cir. 2005). Both of those concerns are inapplicable
in the present context.
-22-
assess the severity of the defendant's particular crime in light of
the surrounding circumstances. See Witte v. United States, 515
U.S. 389, 402-03 (1995). In so doing, courts are not punishing a
defendant for a distinct offense; they are instead evaluating the
totality of a defendant's conduct in order to arrive at a
reasonable sentence. See United States v. Amirault,
224 F.3d 9, 15
(1st Cir. 2000) (holding that a sentencing court can look to past,
uncharged conduct to impose an aggravated sentence for the
possession of child pornography because such conduct bears upon the
gravity of the possession offense).
We therefore reject the defendant's argument that the
government must necessarily show the defendant actively and
subjectively desired that others would get images of child
pornography from him and that ordinary general intent does not
suffice.
B. Application of "Intent to Traffic" in This Case
We consider the district court's application of this
guideline to the facts of this case to be a mixed question of law
and fact, which we review using a sliding standard of review. We
review predominantly legal questions de novo, while we defer to
fact-driven determinations and review them for clear error. See
United States v. Sicher, 576 F.3d 64, 70-71 & n.6 (1st Cir. 2009).
The district court's application of § 2G2.4(c)(2) in this case was
heavily fact-dependent, and we find that it did not err in
-23-
concluding that Dyer's online conduct showed an "intent to traffic"
under § 2G2.4(c)(2). We would reach this conclusion even if we
were to review the district court's application of § 2G2.4(c)(2) de
novo.
The Internet, and its capacity to facilitate online
bartering of computer files between collectors and purveyors of
child pornography, readily links a single computer user to a
possible network of others. See United States v. Lewis, 554 F.3d
208, 210 (1st Cir. 2009). It is clear that for there to be any
meaningful distinction between the crimes of possession and the
enhancement for intent to traffic, more than mere receipt of child
pornography on a computer must be shown for § 2G2.4(c)(2) to apply.
Sromalski, 318 F.3d at 751-52. Other circuits have held that this
cross-reference applies to defendants who arranged to exchange
images of child pornography with others over e-mail or by posting
these images in an online chatroom. See, e.g., United States v.
Bender,
290 F.3d 1279, 1285 (11th Cir. 2002) (applying cross-
reference to defendant who traded child pornography over email);
United States v. Johnson,
221 F.3d 83, 98 (2d Cir. 2000), cert
denied,
533 U.S. 953 (2001) (applying 2G2.4(c)(2) to defendant who
conceded that he "sen[t] and received" images of child pornography
on his computer).
We do not decide whether the use of file-sharing software
such as LimeWire per se would have qualified as trafficking under
-24-
§ 2G2.4(c)(2). Our holding centers on the facts of this case. As
the sentencing judge emphasized, Dyer chose to download and
frequently use LimeWire, a type of peer-to-peer software that
creates a shared system of users, and he did so to acquire images
of child pornography for his personal collection.9 He downloaded
these files into a "shared" folder that he knew would be made
available to others. He did so for two years and gave no
indication to Agents Lechner and Pritchard that he would have
stopped had he not been arrested. He knew how to turn off the
"sharing" feature of LimeWire and prevent other users from
accessing these features, but he did not, at any point, make an
effort to do so. By his actions, Dyer took deliberate steps to
become part of a virtual community of consumers of child
pornography who shared images to enlarge their own collections.
Our holding that these acts showed an "intent to traffic" likewise
comports with the holdings of other circuits on similar fact
patterns. See United States v. Groenendal, 557 F.3d 419, 423-24
(6th Cir. 2009) (holding that the defendant engaged in trafficking
9
We have previously discussed LimeWire's functions at
length. LimeWire "is a peer-to-peer file sharing application that
connects users who wish to share data files with one another."
Lewis, 554 F.3d at 211. When a user downloads LimeWire, the
program creates a new folder on his computer where any files
downloaded from LimeWire will be saved. LimeWire designates this
as a "shared" folder, meaning that its contents will automatically
be available to other users. Users can locate and download these
files free of charge by entering search terms describing the
desired content. When a user downloads a copy of the file,
LimeWire saves it in the user's "shared" folder.
Id. at 211.
-25-
under § 2G2.4(c)(2) when he posted images online to child
pornography-trading group); Todd, 100 F. App'x at 250 (finding that
"[b]y downloading the images and making them accessible to others,"
defendant became eligible for sentencing pursuant to §
2G2.4(c)(2)).10
To be clear, we do not today reach the abstract issue of
whether any LimeWire user who downloaded child pornography could
have been sentenced under § 2G2.4(c)(2) because of LimeWire's
inherent file-sharing features and purposes. Dyer, by his own
admission, was differently situated from an unwitting LimeWire user
who failed to realize that by downloading files, he was also saving
them to a "shared," universally accessible folder on his own
computer. On the facts of this case, the district court was
correct to conclude that Dyer's conduct warranted the application
of § 2G2.4(c)(2).
III.
Finally, Dyer asserts that the district court relied upon
Agent Lechner's testimony before a grand jury to conclude that Dyer
knew that he could have made child pornography files unavailable to
10
Moreover, these facts would be sufficient for us to find
an intent to traffic even if § 2G2.4(c)(2) were read to require
specific intent. Dyer's long-term, purposeful use of LimeWire, his
deliberate failure to turn off the file-sharing function, and his
awareness that other users could download child pornography from
his "shared" folder could reasonably be found to amount to a
specific intent to share these images with other users, not just
knowledge that such a result was the likely consequence of his
actions.
-26-
other LimeWire users by transferring the files to another location.
This, Dyer claims, violated his Confrontation Clause rights because
the grand jury testimony was never part of the record and because
he had no chance to challenge that testimony during the sentencing
hearing.
This argument lacks merit, not least because the
Confrontation Clause does not apply at sentencing. See United
States v. Luciano, 414 F.3d 174, 178-79 (1st Cir. 2005).
Further, Dyer failed to raise this argument before the
district court, and any claim would therefore have to rise to the
level of plain error to warrant reversal. See United States v.
Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005). There is no
possibility of plain error in this case. Dyer presents no evidence
that the district court relied upon Lechner's grand jury testimony.
Moreover, Dyer's counsel effectively cross-examined Agent Lechner
about Dyer's understanding of file-sharing at the sentencing
hearing. Beyond this, the district court's conclusion that Dyer
knew he could have disabled the sharing feature is supported by a
number of documents throughout the record, including the
government's Exhibit A at sentencing. That exhibit, in fact,
explicitly summarized Agent Lechner's conclusion from his interview
with Dyer that Dyer knew "you would have to physically move the
file to another location to make it unavailable for sharing."
The sentence is affirmed.
-27-
-Concurring and Dissent Opinion Follows-
-28-
TORRUELLA, Circuit Judge (Concurring in part and
Dissenting in part). I dissent from the majority's conclusion that
Appellant Mark David Dyer ("Dyer") was properly sentenced under
U.S.S.G. § 2G2.4(c)(2) for possession of child pornography with
intent to traffic. I write separately to state my conclusion that
§ 2G2.4(c)(2) requires specific intent to traffic in child
pornography and to note that the facts of this case fail to
establish that Dyer exhibited specific intent to traffic in child
pornography. I join the majority in rejecting Dyer's claim that
the sentencing court violated his Sixth Amendment right to confront
the witnesses presented against him.
I. U.S.S.G. § 2G2.4(c)(2) requires specific intent
The determination of the sentence that should be applied
to Dyer's conviction for possession of child pornography hinges
upon an interpretation of the term "intent to traffic" within the
purview of § 2G2.4(c)(2). The majority interprets the term "intent
to traffic" to require general intent in the sense of knowledge,
and not specific or purposeful intent. I respectfully disagree
with this interpretation.
During the sentencing proceedings Dyer argued that he had
no intention to distribute the images he possessed and that he did
not have "an actual intention for anybody else to receive those
images." The government, on the other hand, contended that Dyer
possessed the images with intent to traffic. On the basis of
-29-
Dyer's arguments and taking into consideration the government's
position, the district court concluded that Dyer's actions met the
requirements of § 2G2.4(c)(2).1 On appeal, Dyer argues that the
government failed to show that he acted with specific intent to
traffic in child pornography and the government has not contested
Dyer's assertion that § 2G2.4(c)(2) requires specific intent.
As a threshold matter, the majority claims that Dyer has
waived the argument that § 2G2.4(c)(2) requires the government to
prove that he acted with specific intent to traffic in child
pornography. The majority's attempt to justify the application of
plain error review in this case fails not the least because the
record shows that Dyer has argued that he lacked actual or specific
intent, but because it is clear that the government never argued
that § 2G2.4(c)(2) requires general intent to traffic. Thus, the
government never put the district court in position to decide
whether general intent suffices to apply § 2G2.4(c)(2). The
majority therefore errs when it faults Dyer for not developing his
1
The majority underscores the fact that the sentencing
court never interpreted the term intent within the purview of
§ 2G2.4 (c)(2). The majority also concludes that the district
court did not plainly err when it concluded that Dyer's actions met
the Guideline's intent requirements. In so concluding, the
majority assumes that the district court inferred a general intent
requirement from § 2G2.4(c)(2). However, in my view, the
government's failure to argue that general intent suffices in this
case, reveals that the district court interpreted § 2G2.4(c)(2) in
light of Dyer's argument that he lacked actual or specific intent
to traffic. The district court therefore did not hold, as the
majority does today, that general intent suffices to sentence Dyer
under § 2G2.4(c)(2).
-30-
specific intent argument, even though Dyer has argued that he
lacked specific intent and the government never claimed that
general intent suffices to apply § 2G2.4(c)(2). I therefore cannot
partake in the majority's assertion that this court's
interpretation of the mens rea required by § 2G2.4(c)(2) is
controlled by plain error analysis.
The distinction between general and specific intent is
sometimes difficult and at times elusive. See United States v.
Bailey, 444 U.S. 394, 403 (1980)(acknowledging the difficulty
courts face in defining the mens rea required for a particular
crime and discussing the different interpretations of general and
specific intent). But it is critically important in a case like
this where the sentence to be imposed on one convicted of
possessing child pornography depends on the state of mind with
which he possessed said material.2
2
The majority argues that the distinction between specific
and general intent is not critical in this case because we are not
concerned with defining the elements of a crime to separate
wrongful and innocent conduct. The majority further suggests that
the leeway sentencing judges enjoy in considering past uncharged
conduct bolsters the conclusion that general intent satisfies the
mens rea required by § 2G2.4(c)(2). I fail to ascertain why we
should disregard the distinction between specific and general
intent when we interpret the mens rea established by the Sentencing
Guidelines. This distinction is crucial in this case because the
less culpable conduct of possession bleeds into the more serious
conduct of trafficking on the basis of criminal intent. Bearing in
mind that our interpretative task in this case requires us to tread
the waters of the "relation between some mental element and
punishment for a harmful act," Morissette v. United States, 342
U.S. 246, 250-51 (1952), it is crucial to carefully scrutinize the
level of culpability the Sentencing Guidelines prescribe.
-31-
A specific intent crime is one "committed voluntarily and
purposely with the specific intent to do something the law
forbids." United States v. Blair, 54 F.3d 639, 642 (10th Cir.
1995)(internal quotation marks omitted). It requires more than a
knowing violation of the law. United States v. Kimes,
246 F.3d
800, 806 (6th Cir. 2001). The defendant must act with a bad
purpose or with the objective of committing the act prohibited by
the law. See
Blair, 54 F.3d at 642; United States v. Kleinbart,
27
F.3d 586, 592 n.4 (D.C. Cir. 1994). In contrast, a general intent
crime requires the knowing commission of an unlawful act.
Kleinbart, 27 F.3d at 807. The defendant must act "voluntarily and
intentionally, and not because of mistake, inadvertence or
accident."
Blair, 54 F.3d at 642.
The majority provides several arguments to support its
conclusion that the term "intent to traffic" under § 2G2.4(c)(2)
requires general intent. The majority claims that the Sentencing
Commission chose not to use language that would require specific
intent and that both the legislative history of the panoply of
statutes that criminalize distribution and trafficking of child
pornography, and the "general considerations" of criminal intent
support the conclusion that § 2G2.4(c)(2) requires general as
opposed to specific intent. Regrettably, the majority misapprehends
the text of the Guidelines, ignores their clear mandate, and
misapplies the "general considerations" of criminal law and intent.
-32-
First, the plain language of § 2G2.4(c)(2) reveals that
the Commission required specific intent in order to find that one
convicted for possession of child pornography should be sentenced
under U.S.S.G. § 2G2.2, which is the trafficking Guideline. By
employing the term "intent to traffic," the Sentencing Commission
chose language that has been interpreted by several of our sister
courts to require specific intent. Kimes, 246 F.3d at 808
(explaining that when Congress intends to create a specific intent
crime it does so explicitly by employing, for example, the term
"with intent to"); see also United States v. Welch,
327 F.3d 1081,
1095 (10th Cir. 2003)(interpreting the Travel Act, 18 U.S.C.
§ 1952, and holding that by requiring an act with "intent to . . .
promote . . . or facilitate the promotion . . . of an unlawful
activity," the statute required specific intent or proof that the
defendant acted with the objective of promoting some unlawful
activity). For example, the federal statute that criminalizes the
knowing use of unauthorized access devices "with intent to
defraud," 18 U.S.C. § 1029(a)(2), has been interpreted to require
specific intent to defraud. United States v. Ismoila,
100 F.3d
380, 387 (5th Cir. 1996).3 Similarly, in the drug-trafficking
3
The majority errs when it relies on the Eighth Circuit's
decision in United States v. Gantos, 817 F.2d 41, 42-43 (8th Cir.
1987) to argue that specific intent is not ordinarily a
prerequisite in criminal offenses. The Court in Gantos reviewed a
specific intent instruction that defined specific intent as
requiring evidence that the defendant knew that his act violated
the law and that he purposely intended to violate the law. Relying
on the general principle that ordinarily knowledge that an act
-33-
context, we have consistently held that to prove possession with
intent to distribute in violation of 21 U.S.C. § 841, the
government must establish that the defendant knowingly and
intentionally possessed a controlled substance with specific intent
to distribute. United States v. García-Carrasquillo, 483 F.3d 124,
130 (1st Cir. 2007); United States v. López-López,
282 F.3d 1, 19
(1st Cir. 2002).
Additionally, the structure of § 2G2.4(c)(2) and its
interaction with § 2G2.2 bolster the conclusion that the Sentencing
Commission included a specific intent requirement. The Commission
added § 2G2.4 to address offenses involving possession of child
pornography, as distinguished from trafficking offenses which are
covered under § 2G2.2. The Commission also directed that when the
offense involves trafficking in child pornography, including
possession of said material with intent to traffic, an enhanced
sentence should be imposed under the trafficking provisions of
§ 2G2.2. U.S.S.G. § 2G2.4(c)2). Put another way, § 2G2.4(c)(2)
allows a sentencing court to apply § 2G2.2 to a defendant who has
been convicted for possession of child pornography when the
violates the law is not an essential element of the offense,
Gantos, 817 F.2d at 43, and mindful of the fact that the criminal
law does not require knowledge that an act is illegal, wrong, or
blameworthy, United States v. Baker,
807 F.2d 427, 429 (5th Cir.
1986)(citation omitted), the Gantos court rejected the proposed
specific intent instruction. The court thus rejected the proposed
instruction on the basis that the statute in controversy did not
require knowledge or purpose to violate the law. But contrary to
the majority's assertion, the Gantos court did not hold that
specific intent is not ordinarily required in criminal offenses.
-34-
government establishes by preponderance of the evidence that the
defendant intended to traffic in said material. A requirement of
specific intent is thus consistent with the Commission's
endeavoring to separate punishment for possession of child
pornography from those offenses that involve trafficking in said
material. It also guarantees that only those who are more than
mere possessors of child pornography are sentenced under § 2G2.2
and its trafficking provisions.
Secondly, I disagree with the majority's assertion that
a requirement of general intent better comports with the
legislative history of the statutes that criminalize trafficking in
child pornography. In the majority's view, the fact that
trafficking in child pornography no longer requires proof that the
defendant acted with a commercial purpose reveals that motives are
irrelevant and that consequently § 2G2.4(c)(2) should be
interpreted to require general intent to traffic. In pursuing this
argument, the majority conflates the actions that amount to
trafficking in child pornography with the mens rea required by the
Guidelines. The fact that financial gain or commercial purpose is
not necessary to convict an individual for trafficking in child
pornography informs our interpretation of the term "traffic" by
clarifying the actions that amount to trafficking in child
pornography. However, this legislative history does not end our
inquiry regarding the mens rea an individual must exhibit to be
-35-
deemed to possess child pornography with intent to traffic. We are
here concerned with whether the defendant possessed child
pornography with intent to traffic, not with whether he was moved
by an expectation to recoup a profit. The fact that Congress made
trafficking in child pornography a crime regardless of whether the
defendant was moved by a commercial purpose is not inconsistent
with the interpretation that § 2G2.4(c)(2) requires the government
to show that the defendant specifically intended to traffic in
child pornography.
Thirdly, in my view, the majority misapplies the general
considerations of criminal law when it relies on this court's
decision in United States v. Tobin, 552 F.3d 29, 46 (1st Cir. 2009)
to hold that § 2G2.4(c)(2) requires general intent. Tobin, the
majority argues, allows this court to rest on the default
assumption or "general consideration" that intent in most crimes
means general intent. I disagree. In pursuing this argument, the
majority fails to ascertain that although general intent has been
held sufficient to meet the mens rea requirement for most crimes,
this general principle is ordinarily applied where the criminal
statute is silent as to the mens rea required. See, e.g., Carter
v. United States,
530 U.S. 255 (2000) (concluding that the
presumption in favor of scienter only required proof of general
intent in federal bank robbery statute that was silent as to the
mens rea requirement);
Bailey, 444 U.S. at 406-08 (inferring a
-36-
general intent requirement from federal statute criminalizing
escape from federal custody in the absence of language or
legislative history regarding the mens rea required for
conviction). But where, as here, the plain language of the
statutory text includes a mens rea requirement, we need not resort
to the general considerations invoked by the majority.
Although general intent may generally be sufficient in
most crimes to support a conviction, Bailey, 444 U.S. at 408, we
are dealing in this case with a narrow category of crimes that
require a heightened level of mental culpability. Therefore, the
principle that ordinarily general intent suffices for most crimes
does not control our inquiry in this case.
Finally, the majority errs in its reliance on dicta from
Tobin to conclude that trafficking in child pornography is
inherently bad conduct and therefore knowledge of the consequences
of such action satisfies the Guidelines' mens rea requirement. In
Tobin, this court held that a statute which criminalized the making
of repeated phone calls with intent to harass required specific
intent to harass and further intimated that general intent could be
required by a different section of said statute that criminalized
obscene calls or calls that involved child pornography. 552 F.3d
at 33. The Tobin court was only concerned with interpreting the
statute's section that criminalized the making of repeated phone
calls with intent to harass. Therefore, any expressions related to
-37-
the making of obscene calls or calls involving child pornography
constitute dicta that does not bind the court in the present case.
In addition, the court in Tobin reached its determination by
interpreting the statute as a whole and differentiating between the
harms posed by the types of conduct prohibited under it. The
court, however, did not rule that when a statute criminalizes
actions related to child pornography it should be interpreted to
require knowledge as opposed to purpose. Tobin is therefore scant
authority for the majority's interpretation that §2G2.4(c)(2) only
requires general intent.
In interpreting § 2G2.4(c)(2) I am guided by the
principle that the statute's plain language is the starting point
of our interpretation. Staples v. United States, 511 U.S. 600, 605
(1994)(stating that the language of a criminal statute is the
starting point of the court's interpretation of a criminal
statute);
Carter, 530 U.S. at 271 (stating that the canons of
statutory interpretation require courts to first examine the
statutory text). As has been seen, by employing the words "with
intent to traffic," the Commission chose language that has been
interpreted to require specific intent and the structure and
purposes of the Guidelines support this conclusion. I would
therefore hold that in order to sentence one convicted for
possession of child pornography pursuant to § 2G2.4(c)(2), the
government must prove beyond a reasonable doubt that the defendant
-38-
possessed child pornography with specific intent to traffic in said
material.
II. The facts are insufficient to conclude Dyer exhibited
specific intent to traffic
Although the term "traffic" is not defined in the
Guidelines, it encompasses both buying and selling commodities for
money or exchanging commodities by barter. See United States v.
Paul, 274 F.3d 155, 163 (5th Cir. 2001). Evidence that a defendant
traded pictures online or sent and received images via the Internet
has been found sufficient to constitute trafficking under § 2G2.4
(c)(2). United States v. Bender,
290 F.3d 1279, 1285 (11th Cir.
2002)(convicted defendant admitted that he had traded pictures
online, and the evidence showed that he had sent child pornographic
images to other users online); United States v. Johnson,
221 F.3d
83, 98 (2d Cir. 2000)(finding that trafficking occurred where
defendant admitted he sent and received child pornography over the
Internet). Trafficking has also been found where the defendant not
only downloaded child pornography onto his computer, but also
uploaded child pornographic images in order to join a pornographic
website, United States v. Groenendal,
557 F.3d 419, 421; 424 (6th
Cir. 2009), and where defendant admitted he traded pornography over
the Internet and the evidence showed he sent explicit photographs
to another individual and agreed to exchange videos with an
undercover agent, United States v. Jordan, 111 Fed. Appx. 65, 68
(2d Cir. 2004).
-39-
These cases show that in order to find that a defendant
trafficked in child pornography, the government must prove that the
defendant engaged in affirmative actions to exchange or barter in
child pornography. These actions include, for example, receiving
and sending child pornography. See United States v. Parmelee, 319
F.3d 583, 594 (applying § 2G2.4(c)(2) to a defendant convicted for
possession of child pornography where the evidence established that
defendant stored pornographic images on recordable compact discs
which he intended to barter with other people for programs or
services).
The facts of this case show that Dyer used the file-
sharing application LimeWire to download child pornography; he knew
that when files were downloaded from LimeWire the program
automatically saved the files in a shared folder that was
potentially available to other users; and he failed to remove the
files to make them unavailable for sharing. It is thus clear that
Dyer knowingly downloaded child pornography through LimeWire and
that he understood that LimeWire automatically saves images in a
shared folder. But these actions do not show he purposely sought
to trade, exchange, or barter in child pornography or that he
specifically intended to engage in the sort of activities that have
been held to amount to trafficking in child pornography.
The critical factor to discern whether Dyer intended to
traffic child pornography via LimeWire is not whether he had
-40-
knowledge of how LimeWire works in terms of file-sharing, but
rather whether by using LimeWire to download child pornography Dyer
intended to traffic in said items. We lack proof that Dyer used
LimeWire with the objective of offering the images for barter or
exchange with others. We similarly lack evidence that Dyer sought
to engage in an active exchange of images of child pornography with
the purpose to receive further images in return. Moreover, the
evidence actually established that Dyer had not traded any images
over the Internet via e-mail, chat-rooms, bulletin boards, or
newsgroups.
Absent proof that Dyer allowed LimeWire to keep images in
a shared folder with the purpose of engaging in an exchange of
images, I cannot partake in the majority's conclusion that the
sentencing court properly applied § 2G2.4(c)(2). Specific intent
in this case is inextricably bound to affirmative actions to
traffic in child pornography. In my view, use of LimeWire with
knowledge of its automatic file-sharing features and Dyer's failure
to disable the sharing feature is insufficient to conclude that
Dyer exhibited specific intent to traffic absent evidence that he
took additional actions to offer the images for exchange with the
expectation that he would receive further commodities in return.
I also note my concern with the majority's efforts to
equate intent to share with intent to traffic. Although the
majority claims it is not holding that mere use of LimeWire amounts
-41-
to trafficking in child pornography, its interpretation that the
"crucial acts separating possession from trafficking involve intent
to share images of child pornography with others," threatens to do
just that. While use of a file-sharing program may provide
circumstantial evidence of intent to traffic, a finding that there
is specific intent to traffic requires more than knowing use of a
file-sharing program. It requires proof that the defendant
intended to engage in an exchange of commodities or goods with the
expectation to receive some type of commodity in return. The
inference that sharing is tantamount to trafficking lowers the
threshold of the actions that have been held to amount to
trafficking and leads to the imposition of criminal liability for
trafficking where the user has not exchanged commodities by barter.
For these reasons, I respectfully dissent from the
determination that Dyer was correctly sentenced under § 2G2.4
(c)(2).
III. Confrontation Clause
Finally, I join the majority in rejecting Dyer's claim
that the sentencing court relied on Agent Lechner's grand jury
testimony, thereby depriving Dyer of his right to cross-examine
Agent Lechner regarding his grand jury testimony. We have to
evaluate this claim under the plain error standard of review
because Dyer failed to raise the Confrontation Clause issue before
the district court. United States v. González-Castillo, 562 F.3d
-42-
80, 82 (1st Cir. 2009). As the majority states, there is no
evidence in the record that the sentencing court relied on
Lechner's grand jury testimony without allowing Dyer to elucidate
this testimony at sentencing. Absent an obvious or clear error by
the sentencing court, Dyer's claim that the sentencing court
deprived him of his right to confront Agent Lechner regarding his
grand jury testimony must therefore fail.
IV. Conclusions
I dissent from the majority's conclusion that the
district court properly sentenced Dyer pursuant to § 2G2.4(c)(2).
I would hold that § 2G2.4(c)(2) requires specific intent to traffic
and that the facts of this case fail to show that Dyer exhibited
specific intent to traffic in child pornography. I concur in the
determination that the district court did not violate Dyer's Sixth
Amendment right to confront the witnesses presented against him.
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