DOES THE USE OF A CLOSED FILE SHARING PROGRAM IN A DISTRIBUTION OF CHILD PORNOGRAPHY PROSECUTION SUPPORT THE IMPOSITION OF A FIVE LEVEL ENHANCEMENT UNDER U.S.S.G. §2G2.2(b)(3)(B) FOR THE RECEIPT, OR EXPECTATION OF RECEIPT, OF A THING OF VALUE?

By 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.  An increase of five levels is applied if the offense involved distribution of the images for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG §2G2.2(b)(3)(B).]

Previous decisions held the expectation of receiving something of value must be contextual.  One might use a file sharing program that enabled free access to files.  Those files were free to view.  There was no sharing for valuable consideration as required under §2G2.2(b)(3)(B).  That might be considered simple distribution.  Without proof that a defendant and another specifically agree to share files on a return promise to share files, there could be no transaction for valuable consideration.  See, United States v. Spriggs, 666 F.3d 1284 (11^th Cir. 2012). See also, United States v. Reingold, 731 F.3d 204, 228-230 (2d. Cir 2013), (file sharing can constitute simple distribution under §2G2.2(b)(3)(F) for a +2 level enhancement.)

Recently, the Second Circuit Court of Appeals held that the +5 level enhancement applies when the government advances specific, individualized evidence that the defendant provided access to his collection of child pornography to another person in expectation that the other would provide similar access to other child pornography files. 

In United States v. Bennett, (Docket No.15-0024-cr, decided October 6, 2016), the panel rejected the defendant’s argument that his Guidelines should be increased only by the +2 level enhancement [§2G2.2(b)(3)(F)] because he did nothing “more than simple file sharing.” The court focused on additional facts that supported the application of the enhancement.  The defendant belonged to a closed file sharing network, GigaTribe.  The forensic examination of the defendant’s computer established he had shared his password 221 times with 174 different users on GigaTribe.  The court cited numerous examples of those exchanges wherein the defendant would offer to trade his password for another’s password. This trading permitted each user to access the other’s otherwise inaccessible image files.  This was sufficient for the court to conclude this exchange of passwords after a brief discussion of the user’s interests warranted the +5 level enhancement as it was “distribution for the receipt, expectation of receipt, of a thing of value.”

The Second Circuit rejected a bright line rule that would require all GigaTribe users receive a +5 level enhancement.  Rather, the panel discussed today’s technology.  Some file-sharing programs permit the user to restrict access to their files through password protection.  Others that maintain a password may make their password generally available as a gift rather than as consideration as part of an exchange.  Though many defendants may exchange files on a file-sharing network in hopes of receiving other files in return that does not establish it occurs in every case.  Thus, the appellate court requires the sentencing judge to determine whether the defendant expected to receive access to other individuals’ child pornography files in exchange for his own files.  Here, that was established by Bennett’s conduct in offering his password to other users in exchange for their passwords so he could access other images of child pornography.

Traditional file sharing via peer-to-peer networks is usually considered a distribution other than for something of value.  This frequently results in the application of a +2 level enhancement to the defendant’s sentencing guideline calculations per §2G2.2(b)(3)(F).  Now, the +5 level enhancement under §2G2.2(b)(3)(B) will be applied in those prosecutions in which evidence establishes the defendant provided access to his collection of child pornography to another user with the expectation that the user would provide similar access to other child pornography files.