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December 28, 2009

First Circuit debates applicability of child porn trafficking sentence enhancement

Today's opinion from the First Circuit in US v. Dyer, No. 08-1343 (1st Cir. Dec. 28, 2009) (available here), confirms not only that some federal courts are working this week, but also that downloading child porn in the wrong way can make one liable at sentencing for trafficking in child porn.  Here is the heart of the majority's ruling concerning the application of a federal guideline sentencing enhancement:

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.  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" [and thereby supports a specific guideline sentencing enhancement] likewise comports with the holdings of other circuits on similar fact patterns.

A dissenting opinion in Dyer makes much of a distinction between general intent and specific intent to argue that the defendant in this case should not be subject to a trafficking sentencing enhancement.  And both the majority and dissenting opinions make for interesting reading.

December 28, 2009 at 07:07 PM | Permalink

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Comments

Given my general understanding that p2p networks reward people who themselves share I would have to think a trafficking enhancement would in fact be warranted here. By sharing his collection he got something of value in return, namely higher priority from other peers.

Posted by: Soronel Haetir | Dec 28, 2009 7:25:41 PM

SH. Both the government and the majority opinion directly rejects that point.

Posted by: Daniel | Dec 28, 2009 8:04:31 PM

Soon everything will be illegal.

Posted by: Los Angeles Paralegal | Dec 28, 2009 10:18:34 PM

There are not enough jail cells for all the people who look at stuff.

Posted by: mpb | Dec 29, 2009 11:58:20 AM

While I believe that the dissenting opinion is right as a matter of statutory interpretation, the case is extremely interesting in that there is a good chance that the defendant actually distributed illegal images but lacked the specific intent to distribute the images. The majority's opinion effectively transforms "intent" into knowledge that further distribution was possible regardless of the mens rea of the defendant. While stating that a defendant knowingly using a peer on peer software and knowingly enables further distribution without knowledge or further action on the part of the defendant should be a sentencing enhancement is a defensible result, it is a result that should come from a legislature making specific rules for the new technology.

Posted by: virginia | Dec 29, 2009 12:37:28 PM

Virginia-- Knowledge that further distribution was not just possible, but likely, is not "regardless of the mens rea;" it's a pretty standard definition of general intent mens rea. Also, Daniel, where does the majority reject what you say it does? It rejects the argument that anyone using Limewire to download is ipso facto guilty of trafficking, but I don't think that was Soronel's point.

Posted by: Jay | Dec 29, 2009 4:21:07 PM

jay, the problem or beauty of this opinion depending upon your perspective is that no place does the "proof" that further distribution using the peer to peer network was even "likely" appear in the opinion. thus the evidence of "intent to distribute" simply appears to be a guess. that may not be a problem, since I suspect that it probably is accurate and I'm definitely in favor of locking up icky pervs who get off on seeing sexual violence against girls for as long as the law allows. but the plain language interpretation of "possession with intent to distribute" suggests specific intent which does require mens rea and there was simply no proof presented showing intent to distribute. as the dissenter points out, it does not create a terribly demanding burden on the government to require actual proof.

Posted by: virginia | Dec 29, 2009 6:00:03 PM

Looks like the sort of legal tea-leaf reading that routinely passes for high-minded analysis.

We've got this watch that we'd really like to burn. So all we need now is a malleable statute and a circuit court that shares our disdain for witches.

Feels like persecution.

Posted by: John K | Dec 29, 2009 6:42:53 PM

...we've got this witch...

Posted by: John K | Dec 29, 2009 6:44:29 PM

Ginny --

"I'm definitely in favor of locking up icky pervs who get off on seeing sexual violence against girls for as long as the law allows."

But not sexual violence against boys???

Posted by: Bill Otis | Dec 29, 2009 6:54:23 PM

bill: "But not sexual violence against boys???"

me: are you trying to paint me as a man hating liberal feminist? ;)

that statement was directed towards the specific facts which I found specifically disturbing. that was a fact based determination based on this defendant. as the court describes, the defendant possessed some disturbingly violent and mysognistic material of men abusing girls which would qualify gender based sexual violence if done to a nonconsenting adult woman. the almost 8000 images involving over 500 known girls were also exclusively of females in a narrow age range.

so I really see three elements in this icky perv which creeps me out more than the standard icky perv - the large number of images, the exclusivity (there was no mention of having a large number of adult pornographic images, the images were all girls and all in a narrow age range), and the specifically gender directed violence against girls conducted by men. of course, I suspect that those specifically creepy elements to this icky perv over the normal icky perv which made him the test case for their new theory - no one who reads that case is going to be upset if that guy gets extra time.

so while I'll admit that the specifically mysogistic elements of this particular defendant's crime made me upset, I would say the same thing about a similarly situated icky perv (large number of images, exclusive gender and age range, disturbingly violent images especially specifically gender based violence) who prefferred boys.

Posted by: virginia | Dec 30, 2009 1:10:02 PM

Ginny -

As I went over it, it dawned on me that you were probably talking about this specific case involving just girls. Thanks for letting me know.

P.S. I loved this phrase: "I suspect that those specifically creepy elements to this icky perv over the normal icky perv ..."

If I were still writing briefs for the government, I would be sorely tempted to use that line. The concept of "the normal icky perv" deserves wider publication.

Posted by: Bill Otis | Jan 3, 2010 8:43:44 AM

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