Convictions Under Pennsylvania’s Terroristic Threat Statute Are not Crimes of Violence.

Applying the holding in Descamps v. United States, 133 S.Ct. 2276 (2013), the Third Circuit held in United States v. Brown (13-4442) that convictions for making terroristic threats (18 Pa. Cons. Stat. §2706) were not categorically crimes of violence for purposes of the career offender sentence enhancement (U.S.S.G. § 4B1.1).

While incarcerated on a separate state offense, Appellant Gregory Garett Brown mailed a letter threatening both a federal magistrate judge and a federal district court judge.  He pled guilty to mailing threatening communications in violation of 18 U.S.C. §876(c).  The PSR recommended Brown be sentenced as a career offender under §4B1.1(a), which had the effect of doubling his guideline range from 30 to 37 months, up to 77 to 96 months. The PSR identified four prior Pennsylvania state convictions that allegedly triggered the enhancement including: one conviction for aggravated assault, one conviction for retaliating against a judicial officer, and two convictions for making terroristic threats.  Mr. Brown agreed the aggravated assault was a qualifying offense, and the Government conceded that the retaliation offense did not qualify, so the dispute in this matter was whether the convictions for making terrorist threats qualified as predicate offenses under the career offender enhancement guideline. 

The Third Circuit found that the relevant Pennsylvania statue, 18 Pa. Cons. Stat. §2706, is an “overbroad” statute that criminalizes both conduct that qualifies as a crime of violence and conduct that would not be considered a crime of violence under federal law.  Because the state statute applies to such a broad range of conduct, under the precedent set in Descamps, §2706 is not categorically a crime of violence.  Moreover, the modified categorical approach for reviewing predicate offenses is not applicable when a statute provides for multiple versions of an offense but none of those variations is categorically a crime of violence.  Accordingly, the two state convictions under this statute did not qualify as predicate offenses and the enhancement could not be applied to Brown’s sentencing calculation. Therefore the circuit court vacated the sentence and remanded the case.

The holding in this case has the effect of superseding and overturning part of holding in United States v. Mahone, 662 F.3d 651 (3d Cir. 2011).

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.