Mark D. Hosken, Supervisory Assistant Federal Public Defender
The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution. The greatest enhancement (an increase of five levels) is applied if the offense involved distribution for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG § 2G2.2(b)(3)(B).]
What is distribution? Any act, including possession with intent to distribute...., related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for pubic viewing. [USSG § 2G2.2 comment, note 1.]
What is receipt for a thing of value? Any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. Thing of value means anything of valuable consideration. [USSG § 2G2.2 comment, note 1.]
Frequently, sentencing courts apply the five level enhancement to those individuals utilizing peer-to-peer file sharing programs such as LimeWire, FrostWire, Kazaa, or Shareaza to download contraband images. Those courts reason once an individual installs a file sharing program it is configured to allow others to download the defendant’s collection of child pornography stored in a shared folder. The shared folder is a repository for the illegal images which others access and download. The conclusion being the defendant distributed child pornography with the expectation he would receive a thing of value – additional child pornography – from other peers.
This enhancement is applied in those situations when the defendant admits use of a file sharing program. Rarely is the government required to prove the defendant was proficient or knowledgeable in the settings found in the installation of the peer to peer program. Nor, is the government required to establish transfer of something of value other than the mere existence of the file sharing application. The discovery of the program with a shared folder is usually sufficient for the five level enhancement.
Recently, a panel of the Eleventh Circuit struck down the application of the five level enhancement finding the record did not support the conclusion that the defendant distributed child pornography for receipt, or expectation of receipt of a thing of value.
In United States v. Spriggs, ____ F.3d ____, 2012 WL 48016 (11th Cir., January 10, 2012), the defendant was convicted of receiving child pornography. Spriggs downloaded the images through a file sharing program, Shareaza. This peer to peer program provided for reciprocal sharing. Others could access and download files from Spriggs’ shared folder. The majority of Spriggs’ collection of contraband images was located in this shared folder. The record supported a finding that Spriggs knew Shareaza enabled others to access files on his computer. Similarly, Spriggs admitted he used the program to download and upload files.
The panel determined the expectation of receiving a thing of value must be contextual. The use of a file sharing program enables free access to files. The files are free. There is no sharing for valuable consideration as required under the Guidelines. Without proof that Spriggs and another user specifically agreed to share their files on a return promise to share files, there was no transaction conducted for valuable consideration.
Notwithstanding Spriggs’ plea to receiving child pornography and his use of a peer to peer file sharing program, the majority of the contraband images found in the shared folder, and his use of the program to download and upload files, there was insufficient evidence to support the five level enhancement for receipt, or expectation of receipt, of a thing of value.
The significance of this decision is the rejection of the enhancement for simply using a peer to peer file sharing program. Some sentencing courts previously considered the use of a file sharing program constituted bartering for something of value-more contraband images. Here, the panel in Spriggs specifically rejected that application. Moreover, the additional facts present in Spriggs (admissions of the use of shared folders and the distribution and receipt of contraband images) were not indicia of proof of sharing for valuable consideration. Simply put, the Guidelines’ enhancement requires something more.