United States v. David Husmann

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-2688

_____________

UNITED STATES OF AMERICA,

v.

DAVID GEORGE HUSMANN,

Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 12-cr-00141-001)

District Judge: Honorable Lawrence F. Stengel

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Argued: March 24, 2014

Before: FUENTES, GREENBERG, and VAN

ANTWERPEN, Circuit Judges.

(Opinion Filed: September 3, 2014)

Zane David Memeger, Esq.

Robert A. Zauzmer, Esq. [ARGUED]

Michelle Rotella, Esq.

Office of the United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Attorneys for Appellee, United States of America

Theodore C. Forrence, Jr., Esq. [ARGUED]

Kenneth C. Edelin, Jr., Esq.

1500 John F. Kennedy Boulevard

Two Penn Center Plaza

Suite 200

Philadelphia, PA 19102

Attorneys for Appellant, David George Husmann

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OPINION OF THE COURT

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FUENTES, Circuit Judge.

David George Husmann placed various images of

child pornography in a shared computer folder connected to a

file sharing network. Based on that conduct, a jury convicted

him of three counts of distributing child pornography. At trial,

the government did not present evidence that any person had

actually downloaded or obtained the materials that Husmann

made available. The issue we address is whether the mere act

of placing child pornography materials in a shared computer

2

folder, available to other users of a file sharing network,

constitutes distribution of child pornography. We conclude it

does not. A conviction for distributing child pornography

cannot be sustained without evidence that another person

actually downloaded or obtained the images stored in the

shared folder. Accordingly, we vacate Husmann’s conviction

under 18 U.S.C. § 2252(a)(2) and remand for resentencing.

I.

A.

While Husmann was on supervised release for a child

pornography conviction, the U.S. Probation Office received a

software alert indicating that his computer had accessed

pornographic websites and images. In response to the alert,

U.S. Probation Officer Stephen Carmichael visited

Husmann’s residence. Carmichael found Husmann in the act

of viewing a still image of a young girl between six and eight

years old posed in a bathing suit. Carmichael thought this

image originated from a flash drive in the USB port of

Husmann’s DVD player. Carmichael seized that drive and

three other flash drives.

Carmichael found pornographic images on the flash

drives and referred the case to the FBI for investigation. After

obtaining a search warrant, FBI agents searched Husmann’s

home. They seized several computers and computer-related

items. They also questioned Husmann, who admitted to

downloading, saving, and viewing all of the images stored on

the flash drives that Carmichael had seized over a month

earlier.

3

FBI Agent Donald Price subsequently reviewed the

evidence seized from Husmann’s home. He found over 4,000

images of child erotica. Of these images, the government

identified approximately 65 still images and one hour-long

movie as child pornography. Price also found two file sharing

programs installed on Husmann’s computer, Limewire and

360 Share Pro.

File sharing programs, also known as peer-to-peer file

sharing programs, enable computer users to share and receive

electronic files, including images, videos, and audio files,

with a network of other users. To exchange files, users’

computers communicate directly with each other, rather than

through central servers. See Metro-Goldwyn-Mayer Studios

Inc. v. Grokster, Ltd., 545 U.S. 913, 919-20 (2005). Program

users can search for files made available by other users,

browse files made available by a specific user, and download

files. See United States v. Chiaradio, 684 F.3d 265, 271 (1st

Cir. 2012) (discussing the features of file sharing programs).

Program users can also make their files accessible to others

by placing their files in a designated folder that is available to

the network of program users. See id. Since communications

take place between computers connected to the file sharing

network and do not travel through a central server, see Metro-

Goldwyn-Mayer Studios, 545 U.S. at 920, placing files into a

shared folder does not automatically transmit them to another

computer; shared files do not leave a user’s computer until

another program user actually downloads them.

360 Share Pro maintains an extensive log file that

details what materials a user has made available for sharing.

Agent Price’s review of the log file in this case revealed that

child pornography files were placed in a shared folder on 360

4

Share Pro, allowing others access to the files on several dates.

However, Price could not identify when these files were

loaded to the shared folder nor could he determine if the files

were “ever downloaded to another machine.” App. 202.

B.

Following the government’s investigation, a federal

grand jury returned a seven-count indictment. Counts One

through Three alleged that Husmann knowingly distributed

child pornography, in violation of 18 U.S.C. § 2252(a)(2).

Counts Four through Six alleged that Husmann knowingly

received child pornography, in violation of 18 U.S.C. §

2252(a)(2). Finally, Count Seven alleged that Husmann

knowingly possessed child pornography, in violation of 18

U.S.C. § 2252(a)(4)(B).

The case proceeded to trial. On the first day of trial,

the government voluntarily dismissed Counts Four through

Six, which charged Husmann with knowingly receiving child

pornography. At the close of the government’s case,

Husmann moved to dismiss the remaining charges pursuant to

Rule 29 of the Federal Rules of Criminal Procedure. He

argued that the government’s evidence was insufficient to

establish that he was the person who uploaded the files in

question, since the four other people who lived with him had

easy access to the computer and flash drive at issue. The

District Court denied the motion and called for the defense’s

case. Thereafter, the jury found Husmann guilty of three

counts of distribution and one count of possession of child

pornography.

Before sentencing, the Probation Department

submitted a Presentence Investigation Report (“PSR”), which

5

identified Husmann’s base offense level as 22. The PSR

proposed several enhancements under § 2G2.2 of the

Sentencing Guidelines and calculated Husmann’s Adjusted

Offense Level as 37. The report stated that, based on an

offense level of 37 and a criminal history category of III,

Husmann’s guideline sentence ranged from 262 to 327

months. The government later filed a sentencing

memorandum. The government agreed with virtually all of

the enhancements proposed by Probation except that it

recommended a two-level, instead of four-level, enhancement

for the number of child pornography images in Husmann’s

inventory.

The District Court subsequently conducted a

sentencing hearing. The Court declined to apply a two-level

enhancement under U.S.S.G. § 2G2.2(b)(6) for the use of a

computer, since virtually all child pornography offenders use

computers. Additionally, the District Court adopted the

government’s proposal to apply a two-level enhancement for

the number of child pornography images in Husmann’s

collection. After imposing the other enhancements,

Husmann’s total offense level became 33, with a

corresponding guideline range of 168-210 months.

Ultimately, the District Court sentenced Husmann to a 240-

month term of incarceration on each count, to be served

concurrently. Husmann appealed.1

1The District Court had subject matter jurisdiction over this

case under 18 U.S.C. § 3231, and we have jurisdiction under

28 U.S.C. § 1291.

6

II.

This appeal turns on an issue of statutory construction,

namely whether placing child pornography materials in a

shared folder available to other users of a file sharing network

constitutes “distribution” within the meaning of 18 U.S.C.

§ 2252(a)(2). Husmann argues that the District Court erred in

denying his Rule 29 motion for acquittal with respect to the

distribution counts because the government presented no

evidence that anyone accessed, viewed, or downloaded files

from his shared folder. He asserts that placing child

pornography in a shared folder, without anything more, does

not amount to distribution under § 2252(a)(2). The

government, on the other hand, contends that “‘distribution’

within the meaning of the statute should be defined as

encompassing the act of sharing a file on a file sharing

service, by making it available to all other users.” Gov’t Br.

20.

Husmann also argues that the District Court committed

several errors at sentencing. He claims that the District Court

erred when it identified his prior conviction for possession of

child pornography as a predicate offense for a five-level

sentencing enhancement. Additionally, he argues that the

District Court’s imposition of a 240-month term of

imprisonment was procedurally and substantively

unreasonable. 2

2 Federal Rule of Criminal Procedure 29(a) provides that “the

court on the defendant’s motion must enter a judgment of

acquittal of any offense for which the evidence is insufficient

to sustain a conviction.” Fed. R. Crim. P. 29(a). Before the

District Court, Husmann did not present a legal argument

7

A.

Turning to Husmann’s statute of conviction, 18 U.S.C.

§ 2252(a)(2) provides that:

Any person who . . . (2) knowingly receives, or

distributes, any visual depiction using any

means or facility of interstate or foreign

commerce . . . by any means including by

computer . . . if—(A) the producing of such

visual depiction involves the use of a minor

engaging in sexually explicit conduct; and (B)

such visual depiction is of such conduct . . .

shall be punished as provided in subsection (b)

of this section.

Because the statute does not define the term

“distribute,” “we construe it in accordance with its ordinary

regarding the meaning of “distribute” in § 2252(a)(2).

Therefore, we exercise plain error review. See Puckett v.

United States, 556 U.S. 129, 134-35 (2009). To establish

plain error, an appellant must demonstrate that: “(1) there was

an error; (2) the error is clear or obvious; and (3) the error

affected the appellant’s substantial rights, which in the

ordinary case means it affected the outcome of the district

court proceedings.” United States v. Andrews, 681 F.3d 509,

517 (3d Cir. 2012) (quotation marks omitted). If these three

conditions are satisfied, “an appellate court may then exercise

its discretion to notice a forfeited error, but only if . . . the

error seriously affect[s] the fairness, integrity, or public

reputation of the judicial proceedings.” Id. (alterations in

original) (quoting Johnson v. United States, 520 U.S. 461,

467 (1997)).

8

meaning.” See Octane Fitness, LLC v. ICON Health &

Fitness, Inc., 134 S. Ct. 1749, 1756 (2014) (quotation marks

and brackets omitted). We look to dictionary definitions to

determine the ordinary meaning of a word. See United States

v. Geiser, 527 F.3d 288, 294 (3d Cir. 2008). It is well settled,

however, that a “word must not be read in isolation but

instead defined by reference to its statutory context.” Ali v.

Fed. Bureau of Prisons, 552 U.S. 214, 234 (2008). After all,

“[a] word in a statute may or may not extend to the outer

limits of its definitional possibilities. Interpretation of a word

or phrase depends upon reading the whole statutory text,

considering the purpose and context of the statute, and

consulting any precedents or authorities that inform the

analysis.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486

(2006). Therefore, to determine the meaning of “distribute” in

§ 2252(a)(2), we consider definitions of the term, the

statutory context, and the case law.

Black’s Law Dictionary defines “distribute” as: “[t]o

apportion; to divide among several” and “[t]o deliver.”

Black’s Law Dictionary 487 (9th ed. 2009). Merriam-Webster

provides the following definitions, among others, for the term

“distribute”: “to divide among several or many” and “to give

out or deliver especially to members of a group.” See

Distribute Definition, Merriam-Webster Dictionary, available

at http://www.merriam-webster.com/dictionary/distribute. We

find additional guidance in the definition of “distribute” set

forth in the controlled substances context. Under the Model

Criminal Jury Instructions for the Third Circuit, to distribute a

controlled substance means “(to deliver or to transfer)

possession or control of a controlled substance from one

person to another.” Model Criminal Jury Instructions for the

Third Circuit § 6.21.841-2 (2014); see also 21 U.S.C. §

9

802(11) (providing that “‘distribute’ means to deliver” for

purposes of drug offenses).

The statutory context confirms that “distribute” in §

2252(a)(2) means to apportion, give out, or deliver and that

distribution necessarily involves the transfer of materials to

another person. Significantly, Congress legislated specific

prohibitions against offering and promoting child

pornography within the same statutory scheme as it

prohibited distributing child pornography. See 18 U.S.C.

§ 2251(d)(1)(A) (prohibiting offers to distribute child

pornography); 18 U.S.C. § 2252A(a)(3)(B) (prohibiting the

advertisement and promotion of child pornography); see also

United States v. Sewell, 513 F.3d 820, 822 (8th Cir. 2008)

(holding that placing images of child pornography in a shared

folder on a peer-to-peer file sharing program was “clearly an

offer to distribute the file,” in violation of 18 U.S.C. §

2551(d)(1)(A)). Congress also penalized the attempted

distribution of child pornography through specific statutory

provisions. See 18 U.S.C. §§ 2252(b)(1), 2252A(b)(1).

Because Congress has separately criminalized offering,

promoting, and attempting to distribute child pornography, a

broad definition of the term “distribute” would create

unnecessary surplussage. To give effect to the entire statutory

scheme, “distribute” must require the transfer of possession of

child pornography to another person.

The decisions of our sister circuits provide support for

our construction of the term “distribute.”3 Several circuits

3 Cases addressing child pornography distribution convictions

arise under 18 U.S.C. § 2252(a)(2) as well as 18 U.S.C. §

2252A(a). Both provisions prohibit the distribution of child

10

have made clear that distribution occurs when pornographic

materials are actually transferred to or downloaded by another

person. The Ninth Circuit in United States v. Budziak held

that “the evidence is sufficient to support a conviction for

distribution under 18 U.S.C. § 2252(a)(2) when it shows that

the defendant maintained child pornography in a shared

folder, knew that doing so would allow others to download it,

and another person actually downloaded it.” 697 F.3d 1105,

1109 (9th Cir. 2012). Similarly, the First Circuit in Chiaradio

explained that distribution occurs “[w]hen an individual

consciously makes files available for others to take and those

files are in fact taken.” 684 F.3d at 282 (emphasis added); see

also United States v. Shaffer, 472 F.3d 1219, 1223 (10th Cir.

2007) (“We have little difficulty in concluding that [the

defendant] distributed child pornography in the sense of

having ‘delivered,’ ‘transferred,’ ‘dispersed,’ or ‘dispensed’ it

to others.”).

Moreover, numerous courts have noted the fact of a

file transfer or download when affirming child pornography

distribution convictions under § 2252. See, e.g., United States

v. Richardson, 713 F.3d 232, 236 (5th Cir. 2013) (upholding a

distribution conviction where a law enforcement officer

“actually downloaded” a child pornography video stored in

the defendant’s shared folder); Budziak, 697 F.3d at 1109

(affirming a distribution conviction, where FBI “agents

actually downloaded shared files containing child

pornography from an IP address registered to” the defendant);

Chiaradio, 684 F.3d at 282 (upholding a distribution

conviction because a “rational jury could conclude . . . that

pornography and are materially the same for purposes of the

issue before us.

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the defendant intentionally made his files available for the

taking and that [the agent] simply took him up on his offer”);

Shaffer, 472 F.3d at 1224 (affirming a conviction for

distribution of child pornography based, in part, on the fact

that an agent was able to download child pornography from

the defendant’s shared folder); see also United States v.

Abraham, No. 05-344, 2006 WL 3052702, at *8 (W.D. Pa.

Oct. 19, 2006) (holding that “the defendant distributed a

visual depiction when as a result of the defendant’s

installation of an internet peer-to-peer video file sharing

program on his computer, a Pennsylvania state trooper was

able to download the child pornography from the defendant’s

computer to the trooper’s computer”).

The dissent contends that we have “missapplie[d] the

need for a download to create distribution, where other

factual bases have greater merit in interpreting the definition.”

Dissent Op. at 10. Yet no such ranking system is evident

within decisions addressing child pornography distribution

convictions. Additionally, the dissent quotes from Shaffer and

other cases to suggest that merely making files accessible to

others is sufficient to constitute distribution of child

pornography. That is not so. In Shaffer, it was undisputed that

the defendant’s child pornography had been downloaded by

other individuals, but the defendant argued that he was not

guilty of distribution because he did not take any affirmative

steps to transfer possession of those materials. The Tenth

Circuit in Shaffer rejected the defendant’s argument,

explaining that the defendant “distributed child pornography

in the sense of having ‘delivered,’ ‘transferred,’ ‘dispersed,’

or ‘dispensed’ it to others” because he “freely allowed

[agents] access to his computerized stash of images and

videos” and an agent “had no trouble whatsoever picking and

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choosing for download images and videos from [the

defendant’s] child pornography collection.” 472 F.3d at 1223-

24. To be clear, no circuit has held that a defendant can be

convicted of distribution under § 2252 in the absence of a

download or transfer of materials by another person.

Notably, military courts interpreting § 2252 have held

that the term “distribute” requires evidence of an actual

download or transfer of materials. See United States v.

Gorski, 71 M.J. 729, 734 (A. Ct. Crim. App. 2012)

(“[D]istribution of child pornography files requires the files to

have been transferred or delivered to the possession of

another via peer-to-peer file-sharing software programs.”

(emphasis added)); United States v. Craig, 67 M.J. 742, 746

(N-M. Ct. Crim. App. 2011) (declining “to include

incomplete transfers of possession within the meaning of

‘distribute’ as it relates to child pornography”). In Gorski and

Craig, the courts rejected the defendants’ guilty pleas to

distribution of child pornography because there was no

evidence that another person actually downloaded the

materials at issue. See Gorski, 71 M.J. at 736 (rejecting the

guilty plea to distribution because the defendant’s “actions in

merely making files available for download via peer-to-peer

file-sharing software programs cannot amount to distribution

as a matter of law”); Craig, 67 M.J. at 746 (holding that the

guilty plea was “improvident because it [wa]s supported only

by facts that the images and videos were made available” and

there was no evidence of “a completed transfer of possession

of the contraband”).

B.

The government argues that the meaning of the term

“distribute” in § 2252(a)(2) should track the definition of

13

“distribution” set forth in the Guidelines Manual for purposes

of the distribution enhancement under U.S.S.G.

§ 2G2.2(b)(3). However, the definition of “distribution”

under the Sentencing Guidelines has no bearing on the

meaning of the term in § 2252. As the Tenth Circuit has held,

“the statutory term has a distinct meaning and is not as broad

as the same term under § 2G2.2(b)(3).” United States v.

Ramos, 695 F.3d 1035, 1044 (10th Cir. 2012). “Distribution”

under § 2G2.2(b)(3) extends to such acts as “possession with

intent to distribute, production, advertisement, and

transportation, related to the transfer of material involving the

sexual exploitation of a minor.” U.S. Sentencing Guidelines

Manual § 2G2.2 app. n.1. In fact, “any act . . . related to the

transfer of material involving the sexual exploitation of a

minor” qualifies as “distribution” under § 2G2.2(b)(3). Id.

(emphasis added). Defendants can be subject to the

distribution enhancement even if they are not convicted of

distributing child pornography, since the enhancement applies

to anyone convicted under 18 U.S.C. §§ 1466A, 2252,

2252A(a)-(b), and 2260(b). See U.S. Sentencing Guidelines

Manual § 2G2.2 cmt. (listing the applicable statutory

provisions); see also United States v. Vallejos, 742 F.3d 902,

908 (9th Cir. 2012) (holding that the district court properly

applied a distribution enhancement to a defendant convicted

of receipt of material involving the sexual exploitation of

minors); United States v. Layton, 564 F.3d 330, 335 (4th Cir.

2009) (upholding the application of a distribution

enhancement to a defendant convicted of possession of child

pornography). While several circuits have held that merely

placing child pornography in a shared folder on a file sharing

network warrants application of a distribution enhancement,

no circuit has relied on the Sentencing Guidelines definition

of “distribution” to interpret the meaning of the term in

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§ 2252(a)(2). Because “distribute” in § 2252(a)(2) is narrower

than the same term in § 2G2.2(b)(3), we decline to adopt the

definition of “distribution” laid out in the Sentencing

Guidelines.

Based on the ordinary meaning of the word

“distribute,” the other statutory provisions criminalizing child

pornography offenses, and the decisions of our sister circuits,

we hold that the term “distribute” in § 2252(a)(2) requires

evidence that a defendant’s child pornography materials were

completely transferred to or downloaded by another person.

Of course, knowingly placing child pornography in a shared

folder on a file sharing network remains a criminal offense.

See, e.g., 18 U.S.C. § 2251(d)(1)(A) (prohibiting offers to

distribute child pornography); 18 U.S.C. § 2252(b)(1)

(prohibiting attempted distribution). It just isn’t distribution.

In the end, our interpretation of “distribute” in § 2252(a)(2)

might affect the government’s charging decisions, but it does

not handicap the government’s ability to prosecute child

pornography offenses.

C.

In this case, the government did not introduce evidence

that anyone downloaded child pornography materials from

Husmann’s shared folder. Price testified that a document

entitled “/yayaohno63” and several other files containing

child pornography were successfully loaded to a shared folder

on 360 Share Pro. However, neither he nor any other witness

testified that another person actually downloaded those files.

To the contrary, Price testified that he could not verify when

Husmann’s materials were placed within a shared folder nor

15

could he determine if the documents were “ever downloaded

to another machine.” App. 202.

Because distribution requires a download or transfer of

materials and because the government did not present

evidence that Husmann distributed child pornography within

the meaning of § 2252(a)(2), the District Court erred in

denying Husmann’s motion for acquittal.

III.

The government argues that, even if the District Court

committed an error, it did not amount to plain error. An error

is not “plain” if it is not “clear under current law.” United

States v. Clark, 237 F.3d 293, 297 (3d Cir. 2001). To date, the

Third Circuit has not ruled on the meaning of the term

“distribute” for purposes of § 2252(a)(2). Moreover, it does

not appear that any Article III court has addressed the precise

question of whether “distribution” occurs without evidence of

a download or transfer of materials. Yet the lack of case law

on this specific question does not doom Husmann’s appeal,

since “[n]either the absence of circuit precedent nor the lack

of consideration of the issue by another court prevents the

clearly erroneous application of statutory law from being

plain error.” See United States v. Evans, 155 F.3d 245, 252

(3d Cir. 1998).

The ordinary meaning of the word “distribute” is to

apportion, deliver, or give out; the overall statutory scheme

reveals that the term cannot encompass offers and attempts to

distribute; and appellate case law indicates that distribution

under § 2252(a)(2) requires evidence that child pornography

materials are actually downloaded by or completely

16

transferred to another person. Taken together, the District

Court’s error was “clear under current law.” See Clark, 237

F.3d at 297.

Furthermore, the error affected Husmann’s substantial

rights. Had the District Court granted Husmann’s Rule 29

motion for acquittal as to the distribution counts in the

indictment, Husmann not only would have been acquitted on

the three counts of distribution, but he would have been

subject to a lower base offense level and a reduced guideline

range. A conviction under 18 U.S.C. § 2252(a)(2) carries a

base offense level of 22. See U.S.S.G. § 2G2.2(a)(2). By

contrast, Husmann’s remaining conviction for possession of

child pornography, in violation of 18 U.S.C. § 2252(a)(4),

carries a base offense level of 18. See U.S.S.G. § 2G2.2(a)(1).

Accordingly, we conclude that the District Court

committed plain error in denying Husmann’s Rule 29 motion.

Because “imposing a sentence not authorized by law

seriously affects the fairness, integrity, and reputation of the

proceedings,” we exercise our discretion and vacate

Husmann’s conviction for distributing child pornography. See

Evans, 155 F.3d at 252. We remand to the District Court for

resentencing with respect to Husmann’s remaining conviction

for possession of child pornography. Therefore, we do not

reach Husmann’s challenges to his sentence.

IV.

A jury convicted Husmann of distributing child

pornography pursuant to § 2252(a)(2). Yet the government

did not present evidence that Husmann’s attempts to

distribute child pornography ever succeeded. Because

17

distribution requires a download or transfer of materials, we

conclude that the District Court committed plain error in

denying Husmann’s motion for acquittal. Therefore, we

vacate his conviction under § 2252(a)(2) and remand for

resentencing.

18

United States v. David George Husmann No. 13-2688,

Argued March 24, 2014

VAN ANTWERPEN, Circuit Judge, dissenting.

I cannot join my colleagues in the narrow definition of

“distribution” they would apply to child pornography cases.

George Husmann was convicted by a jury of three counts of

distributing child pornography pursuant to 18 U.S.C. §

2252(a)(2). Husmann placed images of child pornography

into a shared folder accessible to all global users of the peer-

to-peer (“P2P”) file sharing program 360 Share Pro. Once in

the shared folder, a search term and a click of a mouse

allowed access to these images by any user on the system. My

colleagues definition of “distribution,” under 18 U.S.C. §

2252, would create a system in which a person who

intentionally posted child pornography on the Internet,

knowing it is accessible to hundreds, if not millions, of

individuals, is not “distribution.” This is certainly not what

Congress had in mind and following the majority’s approach,

the crime of distribution would not be complete until a police

officer downloaded the image.1 This is a distinction without

merit. Given the plain meaning of the term, the intent of

Congress, the advancement of technology, as well as a series

of recent sentencing cases, the placing of child pornography

into a shared file accessible over a peer-to-peer file sharing

network, alone should constitute “distribution.” Husmann

1 This is not a strict requirement of the majority’s definition,

however due to the inability to search third party computers,

law enforcement officers downloading the image prior to

arrest is most common in cases under § 2252. See e.g., United

States v. Richardson, 713 F.3d 232 (5th Cir. 2013).

1

took all the necessary steps to make a product available to the

public in a publically accessible location, and whether or not

a party took that product is irrelevant to both the purpose of §

2252 and to his role as distributor. For that reason, the

conviction of Appellant George Husmann for “distribution”

under 18 U.S.C. § 2252 should be upheld.

As explained in my colleague’s discussion of how

peer-to-peer networks 2 operate, when a file is placed into the

2 Speaking to its original purpose, the Supreme Court found

“peer-to-peer networks [were originally] employed to store

and distribute electronic files by universities, government

agencies, corporations, and libraries, among others.” MGM

Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 20 (2005). Peer-

to-peer programs allow users through their computers to

communicate “directly with each other, not through central

servers.” United States v. Caparotta, 890 F. Supp. 2d 200,

202 (E.D.N.Y. 2012) (quoting Grokster, 545 U.S. at 919-20).

These file sharing components “combine[] two functions: the

ability to search for and download the files from other users,

and the ability to make files on one’s own computer available

to other users.” Lewis, 554 F.3d at 211 (emphasis added). “A

P2P program user can make his files accessible for browsing

and downloading by other users by placing such files into a

designated folder (the ‘shared folder’) that will automatically

share its contents with the network.” Caparotta, 890 F. Supp.

2d at 919-20 (citing United States v. Chiaradio, 684 F.3d 265,

271 (1st Cir. 2012) (emphasis added)). “The most common

mode of distribution today is ‘open’ P2P file-sharing.” Report

to Congress: Federal Child Pornography Offense: Executive

Summary, 25 Fed. Sent. R. 334, 2013 WL 8171786, at *14

(June 1, 2013). “Open” sharing allows distribution

2

“shared” folder, it is available to anyone who has the network

on their own computers, and readily accessible by typing in

relevant search terms. United States v. Lewis, 554 F.3d 208,

211 (1st Cir. 2009). “Also by default, any file a user

downloads through [a peer-to-peer program] is automatically

placed in that ‘Shared’ folder and is therefore offered by that

user for further downloads by other users.” Id. Thus, a picture

uploaded into a “shared” folder enters an expanding

“international network of interconnected computers” and is

available to “anyone else on the Internet” with this program. 3

“impersonal[ly] and indiscriminate[ly]” to anyone with the

program. Id. Other types, “reflecting a significant evolution of

technologies used to distribute child pornography . . . in the

last decade” include “closed” programs, as well as “pure,”

“centralized” and “hybrid” networks, differing in how and

where a file is stored and accessed. Id.; see also Columbia

Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1025-26 (9th

Cir. 2013). These programs have “changed the way typical

offenders today receive and distribute child pornography.” 25

Fed. Sent. R. 334, 2013 WL 8171786, at *5. Most worrying, a

child porn distributor does not “need[] any particular

technological expertise” and because P2P networks cut out a

centralized server (or “middle man”), there are no records.”

Michael J. Henzey, Going on the Offensive: A Comprehensive

Overview of Internet Child Pornography Distribution and

Aggressive Legal Action, 11 Appalachian J. L. 1, 50 (2011).

As a result, peer-to-peer networks are “stimulating the supply

in the interstate market [of] child pornography.” Adam Walsh

Child Protection and Safety Act of 2006, Pub. L. 109-248, §

501, 120 Stat. 587 (2006).

3 Peer-to-peer sharing programs are free to the public via

download. (App. vol. II at 199a.)

3

Reno v. ACLU, 521 U.S. 844, 849 (1997); see also Lewis, 554

F.3d at 211.

Key to the analysis of whether Husmann “distributed”

the pornography by placing it into his “shared” folder is the

type of peer-to-peer network which was used in this case. It

was 360 Share Pro.4 360 Share Pro “utilizes the LimeWire

network to operate.” (App. vol. II at 186a.) LimeWire, often

involved in the relevant case law discussed within, functions

through an open and centralized “Gnutella network,” and

“users can share all files stored on their computers with other

LimeWire users.” Arista Records LLC v. Lime Grp. LLC, 784

F. Supp. 2d 398, 410 (S.D.N.Y. 2011) (internal quotation

marks omitted) (“LimeWire recommends that all LimeWire

users share generously with one another.”). Further,

LimeWire then scans the computers of other

LimeWire users, to locate files that match the

search criteria. The LimeWire user can

download any files that LimeWire locates.

When the user downloads a file, LimeWire

transfers a digital copy of the file from the

computer on which it is located to the

LimeWire user’s computer.

Id. at 410-11. Thus, once a file is placed in a shared folder it

is “uploaded,” and available to the online community. (App.

vol. II at 203a.)

4360 Share Pro is a subsidiary user of the greater LimeWire

network. (Id. at 186a.)

4

We must not lose sight of the nature of Husmann’s

crime.5 Child pornography has the ability to perpetually harm

the child posed or acted upon in the image or video. “Many

victims live with persistent concern over who has seen images

of their sexual abuse and suffer by knowing that their images

are being used by offenders for sexual gratification . . . .” 25

Fed. Sent. R. 334, 2013 WL 8171786, at *4. Once images of

child pornography are distributed over the Internet, “it is

impossible to eradicate all copies of [them].” Id. More

troubling, the prevalence and pervasiveness of child

pornography has increased dramatically in the Internet age. §

501, 120 Stat. 587. (“The advent of the Internet has greatly

increased the ease of transporting, distributing, receiving, and

advertising child pornography in interstate commerce.”).

Moreover, in subsequent findings, Congress noted “[t]he

technological ease, lack of expense, and anonymity in

obtaining and distributing child pornography over the Internet

has resulted in an explosion in the multijurisdictional

distribution of child pornography.” Prosecution—Child

Pornography Cases, Pub. L. 110-358, § 102, 122 Stat. 4001

(2008). The House of Representatives, in the report

underlying the statute in question, 18 U.S.C. § 2252, 6 states:

These disturbing images litter the Internet and

pedophiles can purchase, view, or exchange this

material with virtual anonymity . . . and [the

Internet’s] expansion . . . has led to an explosion

5 If the majority prevails, I implore Congress to immediately

update 18 U.S.C. § 2252 to prevent the uploading of images

to a peer-to-peer network by defining such action as

“distribution.”

6 Cited as the “Child Protection Act of 2012.”

5

in the market for child pornography, making it

easier to create, access, and distribute these

images of abuse.

H.R. Rep. No. 112-638 (2012), reprinted in 2012

U.S.C.C.A.N. 662, 663 (emphasis added).

The ease, anonymity, and virtual untraceability with

which Husmann made child pornography globally available is

the engine behind § 2252, and the reason that “distribute”

should be given a broader interpretation than the majority

gives it. In analyzing the plain meaning of the statute, we

need not define the outer boundaries of the term

“distribution”; rather, we need only answer the specific

question of whether placing an image of child pornography

into a modern day “shared” folder as part of a peer-to-peer

network is “distribution,” as the District Court found. 7

If a statutory term is undefined, we must apply the

basic principles of statutory interpretation when analyzing the

definition of “distribution.” See Smith v. United States, 508

U.S. 223, 228 (1993) (“When a word is not defined by statute,

we normally construe it in accord with its ordinary or natural

meaning.”). First, we must determine “whether the language

at issue has a plain and unambiguous meaning with regard to

the particular dispute in the case.” Marshak v. Treadwell, 240

F.3d 184, 192 (3d Cir. 2001). Looking both to Black’s and

Merriam-Webster’s dictionaries, we find the plain meaning of

“distribute” to be: “1. To apportion; to divide among several.

7 The parties fail to raise the “rule of lenity,” see, e.g., United

States v. Cheeseman, 600 F.3d 270, 276 (3d Cir. 2010), in

their briefs on appeal and thus the issue is deemed waived.

6

2. To arrange by class or order. 3. To deliver. 4. To spread

out; to disperse.” Black’s Law Dictionary 487 (9th ed. 2009).

Furthermore, in construing statutes, “we must, of course, start

with the assumption that the legislative purpose is expressed

by the ordinary meaning of the words used.” Richards v.

United States, 369 U.S. 1, 9 (1962). As the Supreme Court

recognized, “reasonable statutory interpretation must account

for both ‘the specific context in which . . . language is used’

and ‘the broader context of the statute as a whole.’” Util. Air

Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014) (quoting

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997))

(emphasis added). Clearly the actions undertaken by

Husmann, placing the images in a folder shared globally,

dispersed and apportioned these images to third parties within

the plain meaning of the statute.8

The purpose of Congress in § 2252 and prior related

statutes was to counter the now readily available market for

child pornography over the Internet. H.R. No. 112-638. As

early as 1982, the Supreme Court recognized the harmful and

reoccurring issues created by the distribution of child

pornography. See New York v. Ferber, 458 U.S. 747, 759-60

(1982). “[T]he distribution network for child pornography

must be closed if the production of material which requires

8 Lower courts applying this plain meaning approach have

held the definition of “distribution” is not limited to situations

in which someone downloads an image. See Caparotta, 890

F. Supp. 2d at 204. (“Considering the plain meaning of

‘distribute,’ the court finds that defendant’s placing of child

pornography files in a shared folder accessible to others via a

P2P program on the internet constitutes ‘distribution’ under

Section 2252(a)(2) to persons to share and download.”).

7

the sexual exploitation of children is to be effectively

controlled.” Id. at 759. This trade includes the rampant use of

peer-to-peer networks as “pedophiles use child pornography

distribution methods other than traditional websites that are

difficult to detect and disrupt, such as peer-to-peer

technology.” Michael J. Henzey, Going on the Offensive: A

Comprehensive Overview of Internet Child Pornography

Distribution and Aggressive Legal Action, 11 Appalachian J.

L. 1, 50 (2011) (citing Chad M.S. Steel, Child Pornography

in Peer-to-Peer Networks, 33 Child Abuse & Neglect 560,

560 (2008)).

The purpose of § 2252 is, amongst others, to prevent

the repeated abuse of children used to create the pornography

by stopping the dissemination of images over the Internet. See

§ 501, 120 Stat. 587. Congress itself, when passing the Adam

Walsh Child Protection and Safety Act of 2006,

acknowledged the market for child pornography “through

virtually every Internet technology, including . . . peer-to-peer

[networks.]” Id. Further, Congress found distribution to be

paramount to the trade and further exposure of the exploited

children, see id. (“Prohibiting the intrastate . . . distribution . .

. of child pornography . . . will cause some persons engaged

in such intrastate activities to cease all such activities, thereby

reducing both supply and demand in the interstate market for

child pornography.”), and rested its findings on the premise

that “[a] substantial interstate market in child pornography

exists, including not only a multimillion dollar industry, but

also a nationwide network of individuals openly advertising

their desire to exploit children and to traffic [and] distribute

child pornography with the expectation of receiving other

child pornography in return.” Id. Contextually, one can draw

an inference from the findings underlying this Act that the

8

prevention of Internet distribution across peer-to-peer

networks was contemplated as part of its purpose, and that

purpose can be addressed by not limiting the definition of the

term “distribution.”

Additionally, “distribution” has not been defined as

requiring a subsequent download in similar contexts, 9 most

notably the transferring of music over similar peer-to-peer

networks in violation of copyright distribution rights. See

Grokster, 545 U.S. at 919 (holding that “one who distributes a

device with the object of promoting its use to infringe

copyright . . . is liable”). “Electronic distribution on a peer-to-

peer, without license from the copyright owners, violates the

copyright owners’ exclusive right of distribution . . . .”

Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 903

(8th Cir. 2012).

Finally, the Sentencing Guidelines definition, which

does not require a download,10 has been incorporated by a

9 In drug distribution cases, “distribution” has been broadly

interpreted to include any “acts perpetrated in furtherance of a

transfer or sale, such as arranging or supervising the delivery,

or negotiating for or receiving the purchase price.” United

States v. Jackson, 213 F.3d 1269, 1296 (10th Cir. 2000),

vacated and remanded on other grounds, 531 U.S. 1038

(2000) (internal quotation marks omitted); see also 18 U.S.C.

§ 841(n) (“Distribute, defined, means to sell, issue, give,

transfer, or otherwise dispose of.”).

10 It is noteworthy that the United States Sentencing

Guidelines § 2G2.2, when directly addressing crimes

committed under § 2252, has defined “distribute” in the

broader act as

9

number of Circuits for similar crimes.11 See United States v.

Layton, 564 F.3d 330, 335 (4th Cir. 2009) (collecting cases)

(“We concur with the Seventh, Eighth, and Eleventh Circuits

and hold that use of a peer-to-peer file-sharing program

constitutes ‘distribution’ for the purposes of U.S.S.G. §

2G2.2(b)(3)(F).” (emphasis added).); see also Chiaradio, 684

F.3d at 282 (noting “[t]he fact that the defendant did not

actively elect to transmit those files is irrelevant” to

distribution). Several Circuits in this context have described

the process of placing an image into a shared folder as

“distribution.” See, e.g., United States v. Vadnais, 667 F.3d

1206, 1209 (11th Cir. 2012) (noting control over what images

including possession with intent to distribute,

production, transmission, advertisement, and

transportation, 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 public viewing but does

not include the mere solicitation of such

material by a defendant.

U.S.S.G. § 2G2.2(b)(3)(F) cmt. n.1 (emphasis added).

11 Our Circuit has followed this defining course, albeit for

“aiding and abetting the transportation of child pornography”

in an unpublished opinion. See United States v. Schade, 318

F. App’x 91, 94 (3d Cir. 2009) (“[W]e cannot conclude that

the jury was unreasonable in determining from this evidence

that Schade intentionally kept child pornography files in the

‘My Downloads’ folder and knew that doing so would allow

Bearshare users to access and upload them.”).

10

are shared affects distribution); Arista Records, 784 F. Supp.

2d at 411 n.6 (describing the open and encouraged

distribution process allowed through peer-to-peer networks).

The Ninth Circuit, in a sentencing case, held “that ‘evidence

of a deliberate, affirmative action of delivery’ is not required

to sustain a conviction for distribution of child pornography

under 18 U.S.C. § 2252(a)(2).” United States v. Vallejos, 742

F.3d 902, 907 (9th Cir. 2014) (quoting United States v.

Budziak, 697 F.3d 1105, 1108-09 (9th Cir. 2012)); see also,

e.g., United States v. McManus, 734 F.3d 315, 319 (4th Cir.

2013) ((“[Section] 2G2.2(b)(3)(F) is a residual enhancement”

that may be applied “when a defendant knowingly permits

others to access and retrieve child pornography files in the

defendant’s possession, even if he does so passively.”);

United States v. Reingold, 731 F.3d 204, 229–30 (2d Cir.

2013) (“[K]nowingly placing child pornography files in a

shared folder on a peer-to-peer file-sharing network

constitutes distribution . . . even if no one actually obtains an

image from the folder” and “without regard to whether the

defendant’s primary purpose in placing child pornography

files in a file-sharing program was to receive or to distribute

child pornography.”).

The majority misapplies the need for a download to

create distribution, where other factual bases have greater

merit in interpreting the definition. For example, in Shaffer,

the Tenth Circuit, acknowledging that a law enforcement

agent downloaded the images from a shared folder, noted that

while the defendant “may not have actively pushed

pornography on [peer-to-peer] users, . . . he freely allowed

them access to his computerized stash of images and videos

and openly invited them to take, or download, those items.”

472 F.3d at 1223 (emphasis added). Other Circuits, in the

11

sentencing context, have recently interpreted the statutory

interpretation of “distribution” as, “when [a party] either

transfers it to another person or makes it accessible to others

through a file-sharing website or peer-to-peer network.”

United States v. Grzybowicz, 747 F.3d 1296, 1308 (11th Cir.

2014) (emphasis added); see also United States v. Collins,

642 F.3d 654, 655-57 (8th Cir. 2011) (affirming a district

court’s determination of “distribution” to only require placing

the images in a shared folder of a peer-to-peer network and

knowledge of how that system works).12 This is consistent

with the technology, where users control what is in their

shared folders, and, once removed, those images are not

accessible to the Internet. See Vadnais, 667 F.3d at 1208-09.

Determining that placing an image of child

pornography into a shared folder constitutes “distribution”

would, in light of the technological advances, encompass the

plain meaning and the purpose of § 2252. See United States v.

C.R., 792 F. Supp. 2d 343, 367 (E.D.N.Y. 2011), overruled

on other grounds by United States v. Reingold, 731 F.3d 204

(2d Cir. 2013) (noting “technical advances have led to [child

pornography’s] proliferation over the past twenty years”); see

also 25 Fed. Sent. R. 334, 2013 WL 8171786, at *6

(discussing “dramatic technological changes related to

computers and the Internet over the past decade . . . which

have changed the way typical offenders today . . . distribute

child pornography”).

In the alternative, even if the majority’s definition of

“distribution” is accepted, I would hold that the District Court

12 Husmann undertook the same action with a requisite

knowledge of file sharing.

12

did not plainly err in denying Husmann’s Rule 29 motion to

enter a judgment of acquittal, because the evidence was

sufficient for the jury to find Husmann distributed child

pornography beyond a reasonable doubt. The majority finds

the District Court committed plain error by denying

Husmann’s motion for acquittal on the basis that the

government “did not present evidence that Husmann’s

attempts to distribute child pornography ever succeeded.”

Maj. Op. at 18. As the majority notes, because the issue of

sufficiency of the evidence as to “distribution” was raised for

the first time on appeal, we undertake plain error review. Id.

at 7 n.2. Plain error review requires the Appellant to

demonstrate: “(1) there was an error; (2) the error is clear or

obvious; and (3) the error affected the appellant’s substantial

rights, which in the ordinary case means it affected the

outcome of the district court proceedings.” Id. (quoting

United States v. Andrews, 681 F.3d 509, 517 (3d Cir. 2012)).

Thus, it would need to be clear or obvious that the District

Court erred in concluding that a reasonable jury could have

found that Husmann distributed child pornography.13

13 It must also be noted that no objection was made when at

trial, the District Judge charged the jury with the following

definition of “distribution”:

[T]he definition of distribution is if you find the

defendant knowingly placed images into the

sharing folder of a file sharing program, and if

you find that the defendant knew that placing

the files in that folder allowed others to gain

access to his folder and download those images

you may find the defendant guilty of

distribution.

13

Despite Husmann’s present claims to the contrary, the

testimony elicited could have allowed a rational jury to find

Husmann guilty for distributing child pornography. Jurors can

make reasonable inferences which naturally rise from the

evidence. See Ansell v. Green Acres Contracting Co., 347

F.3d 515, 525 (3d Cir. 2003). First, the jury could have

reasonably found Husmann uploaded the pornography into a

shared folder.14 Second, the jury could have found beyond a

(App. vol. II at 389a.)

14 Ample evidence was provided by the Government proving

Husmann uploaded the images. F.B.I. Forensic Agent Price

then testified the images uploaded by Husmann onto this

system were “shared.”

[ATTORNEY:] So looking at this document

here, can you tell if this [file] was actually

distributed and then uploaded?

[AGENT PRICE:] Yes, it is being shared by the

360 Share Pro for the online community to

download.

[ATTORNEY:] Do you have an expert opinion

whether that was successfully uploaded?

[AGENT PRICE:] I do.

(App. vol. II at 202a.) The testimony concluded with

confirmation the child pornography uploaded onto the file

sharing network was being “shared.” The thumb drive

contained images found in a folder titled “Artpics5.” (Id. at

264a.) These same pictures were found shared in 360 Share

Pro in a folder called “Adorablecuties.” (Id. at 261a, 264a.)

14

reasonable doubt that at least one of the many users with the

file sharing program downloaded the images Husmann made

globally available. This testimony included descriptions of

the global accessibility of peer-to-peer networks and the

contents of the shared folders:

[AGENT PRICE:] [LimeWire and 360 Share

Pro] are programs that are termed as peer-to-

peer sharing programs where there is no

centralized computer where the information is

stored.

Basically, anybody on the internet who

has access to the software can share files and

folders amongst all of the different users in the

world. It is a peer-to-peer system, there is not

centralized storage system of the files.

Agent Price testified these images were uploaded onto 360

Share Pro from a thumb drive.

[ATTORNEY:] [Y]ou can tell that this file is

uploaded on 360 Share Pro?

[AGENT PRICE:] Yes, it is being shared to the

online community.

[ATTORNEY:] On [Husmann’s] computer?

[AGENT PRICE:] Yes

[ATTORNEY:] And in your expert opinion it

was actually successful?

[AGENT PRICE:] Yes.

(Id. at 203a.)

15

(App. vol. II at 185a-186a (emphasis added).) He further

testified about the purpose of uploading an image:

[AGENT PRICE:] [Images are] being shared by

the 360 Share Pro for the online community to

download.

(Id. at 202a.) Finally, Agent Price testified that the specific

images were available for download through the peer-to-peer

network:

[ATTORNEY:] Can you tell [if] this image was

ever actually successfully uploaded?

[AGENT PRICE:] Yes.

....

[ATTORNEY:] And do you have a professional

opinion as to whether this was successfully

uploaded onto the internet?

[AGENT PRICE:] Yes.

....

[I]t was shared for all people to view and

download.

(Id. at 218a-219a (emphasis added).)

Proof beyond a reasonable doubt is met by the

“prosecution persuad[ing] the factfinder ‘beyond a reasonable

doubt’ of the facts necessary to establish all elements of the

offense.” United States v. Vazquez, 271 F.3d 93, 125 (3d Cir.

2001) (citing Sullivan v. Louisiana, 508 U.S. 275, 277–78

(1993)). Furthermore, the government, as verdict winner, is

entitled to “the benefit of all reasonable inferences capable of

being drawn therefrom, and an . . . interpret[ation of] the

evidence in the light most favorable to [it].” Hahn v. Atl.

16

Richfield Co., 625 F.2d 1095, 1099 (3d Cir. 1980) (citing

Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S.

690, 696 (1962)). Review of the record suggests enough

evidence was presented to allow the jury to find Husmann

guilty of a distribution crime that included the majority’s

requirement of a download. The District Court did not

“clear[ly] or obvious[ly]” err in denying Husmann’s motion

for acquittal. In sum, the evidence presented could have

allowed a rational jury to conclude, beyond a reasonable

doubt, that Husmann uploaded the images into his shared

folder, made images of child pornography available to a

global audience, and that at least one member of Husmann’s

global network downloaded them, thus “distributing” child

pornography as charged by the District Court.

At bottom, I find the majority’s definition of

“distribution” to be overly narrow in regards to the plain

meaning and purpose of 18 U.S.C. § 2252, or, in the

alternative, find the District Court did not commit plain error

because a rational jury could have found that a third party

downloaded the accessible pornography. Thus, for the

aforementioned reasons, I respectfully dissent.

17