Skip to main content

For a Conviction of Distribution of Child Pornography Under 18 U.S.C. §2252, the Government Must Prove Images Were Downloaded or Obtained by Another Person.


The Third Circuit held in United States v. Husmann, (No. 13-2688), that in a prosecution for distribution of child pornography, the Government must establish that the illegal images were actually downloaded or obtained by a third party.   The act of uploading images and making them available on a shared computer file or a peer-to-peer network is insufficient to justify a conviction under 18 U.S.C. §2252(a)(2).  In reaching this decision, the appellate court noted that these types of computer sharing programs allow individuals to place materials in shared folders, but the transfer of materials is not automatic.  Instead, another user must download the materials to view them.  It is the actual downloading of the images that the Government must establish as part of its case. 

A central part of the opinion was the discussion of what definition to apply to the word “distribute” within the statutory context.   Ultimately, the circuit court adopted the “ordinary meaning of the word “distribute” and determined that “distribute” under §2252(a)(2) means to transfer materials to another person.  This decision was consistent with several other circuits, as well as military courts, that have ruled that distribution in violation of §2252 occurs only when another individual downloads the images.  In making this determination, the appellate court rejected the more expansive definition of distribution found in the Sentencing Guideline.  The Third Circuit explained that the meaning of distribution for purposes of an enhancement under U.S.S.G. §2G2.2(b)(3) had “no bearing” on the statutory definition of the term. 

            In this case, Appellant David Husmann was on supervised release for a prior child pornography conviction, when the monitoring software in his computer notified Probation that he had accessed pornographic sites.  A search revealed a large number of saved images, as well as two file sharing programs installed on the computer.  Appellant was charged with distribution and possession; additional counts for receipt of child pornography were dismissed prior to trial.  At trial, the Government was able to show that Husmann uploaded images onto the sharing programs, but could not show when the files were loaded and could not establish that the images were successfully downloaded onto another computer.  Based on the lack of evidence that anyone accessed the files, Husmann filed a Rule 29 motion for a judgment of acquittal.  The district court denied the motion and Husmann was convicted by a jury. However, the Third Circuit vacated the conviction because the Government failed to offer any evidence that the materials were ever downloaded by anyone else, and therefore failed to prove distribution.  Thus the denial of the Rule 29 motion was plain error. 

Comments

Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.


The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…

A Traffic Stop Followed by a Summons is not an Intervening Arrest for Sentencing Guidelines Purposes

In United States v. Ley, __ F.3d __, 2017 WL 5618617 (3d Cir., Nov. 22, 2017), the Third Circuit held that a traffic stop, followed by the issuance of a summons, is not an intervening arrest for the purpose of calculating a defendant’s prior convictions under USSG § 4A1.2(a)(2).   Defendant John Francis Ley received two speeding tickets on two consecutive days.  After writing each ticket, the police released Ley and informed him that the matter would proceed via summons.  No arrest was made and Ley was sentenced for both matters on the same day. The District Court, however, held that the issuance of the summons constituted an intervening arrest for the purposes of the Guidelines and each ticket therefore merited an individual criminal history point.  Ley appealed.  Looking at the ordinary meaning of both “arrest” and “summons,” as well as the Supreme Court’s history of distinguishing arrests from other interactions with law enforcement, the Third Circuit, joining three other circuits …