« Lots of not-quite-sentencing criminal justice stuff from SCOTUS | Main | Head of NAACP talking up campaigns to abolish death penalty in states »

January 10, 2012

Creating circuit split, Eleventh Circuit rejects file-sharing basis for significant child porn guideline enhancement

The Eleventh Circuit has an interesting and seemingly important ruling concerning the application of the child porn federal sentencing guidelines today in US v. Spriggs, No. 10-14919 (11th Cir. Jan 10, 2012) (available here).  Here is the start of the opinion and two key paragraphs from the heart of the ruling:

Appellant Timothy Spriggs pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2).  At sentencing, over Spriggs’s objection, the district court applied a five-level enhancement for distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value. See U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(3)(B) (2010).  Spriggs argues that no evidence supports application of the enhancement. We vacate the sentence and remand because, although we find evidence that Spriggs distributed illicit images, there is insufficient evidence to support the other elements of the five-level enhancement....

The Eighth Circuit applies the five-level enhancement if the defendant “expected to receive a thing of value — child pornography — when he used the file-sharing network to distribute and access child pornography files.”  United States v. Stultz, 575 F.3d 834, 849 (8th Cir. 2009).  Because file-sharing programs enable users to swap files, the court reasoned that no additional evidence is needed to establish the type of transaction contemplated in the Guidelines.

We have a different view, however, of the function and operation of filesharing programs than that of the Eighth Circuit.  File-sharing programs exist to promote free access to information. Generally, they do not operate as a forum for bartering.  For example, file-sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares his files.  The files are free.  Because the transaction contemplated in the Guidelines is one that is conducted for “valuable consideration,” the mere use of a program that enables free access to files does not, by itself, establish a transaction that will support the five-level enhancement.  Accordingly, we disagree with the approach taken by the Eighth Circuit.

January 10, 2012 at 05:48 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20162ff5bc45b970d

Listed below are links to weblogs that reference Creating circuit split, Eleventh Circuit rejects file-sharing basis for significant child porn guideline enhancement :

Comments

The court is flat wrong here when they write that file sharing programs don't take into account how generous the user is in allowing others access. Perhaps in the early days of the technology, but that hasn't been the case for at least 5 years now and probably closer to 10. Punishing non-sharers with download handicaps is the primary means such networks have of overcoming free rider issues.

One question I think is interesting, would the non-pecuniary
thing of value standard actually require that the network setup demand that potential users allow access in order to qualify for the enhancement, or would simply being granted preferential treatment (faster and thus more) downloads be enough? I would certainly think preferential status would be a non-pecuniary
thing of value, even if eventually the offender could get all of the same material without that status.

Posted by: Soronel Haetir | Jan 10, 2012 7:38:12 PM

I think that the ambiguity that Soronel identifies makes the line fuzzy enough that the rule of lenity needs to click in. If it is unclear enough whether this guideline applies to this category of facts, then don't apply it. Judge can still go outside the guidelines range under the 3553 factors if the file-sharing conduct seems egregious enough to him or her. And the guidelines already impose pretty substantial penalties for distribution w/o this enhancement. I'd say declining to pile on in a borderline situation is the right call; Sentencing Commission can always amend to clarify if they disagree.

Posted by: Anon | Jan 11, 2012 10:55:56 AM

It is generally a "given" that such a guilty plea involves the defendant waiving any right of appeal. He is quite fortunate that his lawyer didn't acquiesce to that practice.

Posted by: Kate | Jan 11, 2012 11:30:59 PM

To address Soronel, even if the file sharing program enacted such limitations (most do not), it does not necessarily correlate with the text of the enhancement. He easily could have only shared his large collection of soup recipes in exchange for faster downloading of royalty free new-age music and the downloading of pornography was just a side endeavor. There's absolutely nothing to indicate that he distributed the images for the purpose of receiving anything, or if he did, it was not a "valuable consideration".

Posted by: NickS | Jan 12, 2012 8:39:45 AM

NickS: "it was not a "valuable consideration".

me: are you saying that royalty free new age music isn't valuable? Its not exactly my choice for listening, but there is still some sort of value there.

Okay, there is the argument right there - has nothing to do with value, just the fact that just because someone had some child pron avaialble for sharing doesn't prove they actually ever shared it. For all we know, the icky pervs were actually trading Hanna Montana and Justin Beiber music and videos of past Little League Worlds Series and various live action children's shows - of course that would still be rather icky for adults to be trading that and proof that they are icky pervs since there is no way that any non icky perv adult would be interested in such things, but its not actually trading child pron.

Now if all the icky perv had available for trade was child pron - that would be proof of distribtion. But if there was some child porn among thousands of other files available for trade - sorry, I don't see the proof of actual distrubtion there.

Erika :)

Posted by: virginia | Jan 12, 2012 12:36:54 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB