The opinion
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-6-2004
USA v. Harrison
Precedential or Non-Precedential: Precedential
Docket No. 02-4030
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PRECEDENTIAL Office of Federal Public Defender
1001 Liberty Avenue
THE UNITED STATES COURT OF 1450 Liberty Center
APPEALS FOR THE THIRD CIRCUIT Pittsburgh, PA 15222
___________ Counsel for Appellant
No. 02-4030
___________ Paul M. Thompson, Esq. (Argued)
Bonnie R. Schlueter, Esq.
UNITED STATES OF AMERICA Office of United States Attorney
700 Grant Street
v. Suite 400
Pittsburgh, PA 15219
MICHAEL HENRY HARRISON, Counsel for Appellee
a/k/a Emmanuel Henry Harrison, III
___________
Michael Henry Harrison,
OPINION OF THE COURT
Appellant ___________
___________
NYGAARD, Circuit Judge.
APPEAL FROM THE UNITED
STATES DISTRICT COURT Michael Henry Harrison challenges
FOR THE WESTERN DISTRICT OF the sixty-three month sentence imposed by
PENNSYLVANIA the District Court for trafficking in child
pornography. The single issue on appeal is
(D.C. No. 01-cr-00025-1E) whether the sentencing enhancement under
District Judge: United States Sentencing Guideline
The Honorable Maurice B. Cohill, Jr. (“U.S.S.G.”) § 2G2.2(b)(5), for when “a
___________ computer was used for the transmission of
the material or a notice or advertisement of
ARGUED SEPTEM BER 3, 2003 the material,” was properly applied. For
the reasons that follow, we will affirm the
BEFORE: SLOVITER, NYGAARD, and application of the enhancement.
ROTH, Circuit Judges.
I.
(Filed February 6, 2004)
Harrison was indicted as a result of
___________ a sting operation aimed at traders and
collectors of child pornography. He
Renee Pietropaolo, Esq. (Argued) responded to the following advertisement
Karen S. Gerlach, Esq. from an undercover government agent,
posted on a web site geared toward those old. He offered to send a list of these
interested in child pornography: videotapes, and asked Harrison if he had
“anything in the way of pics/vids.”
Hi, I am a discreet collector of Harrison responded:
ACTION VHS Vids on the topic of
pre-teens and very young teens and Hi, I am interested in seeing your
I am looking for others who share list and I have a lot of pics on all
my TABOO interests especially if ages from 5 to 17 mostly hardcore.
you are from Pennsylvania. I am from Pa. also.
Please e-mail me at the below Harrison and the undercover agent
address but you must state that you exchanged numerous other emails, in
are NOT a cop, fbi, or postal or I which the undercover agent described the
will NOT reply. explicit contents of the videotapes, and
Harrison commented, among other things,
Also, please state that you saw this “Hope you’re not a cop LoL!” and
post in YAHOO WILD AND suggested that “Perhaps we could meet
ACTIVE PRE-TEENS so I know someday with some little playmates.”
your reply is legit. Eventually, the two men arranged a trade:
Harrison agreed to mail computer disks
Please no flamers, trolls or fantasy with at least 150 pornographic pictures to
trippers. the undercover agent, and in return, the
agent agreed to mail Harrison three
At the bottom of this advertisement was videotapes entitled “Bath Time,”
the email address used by the undercover “Doctor’s Appointment,” and “Incest
agent. Harrison responded with the Family.” The undercover agent received
following message: four computer disks from Harrison in the
mail, each containing explicit pictures of
Hi, I am a 45 year old male living underage boys and girls engaging in sexual
in NW PA. I saw your post in conduct. The three videotapes were
Active pre teens and want to write. subsequently conveyed to Harrison in a
I am not a cop, fbi or postal angent controlled delivery.
(sic.) and don’t much care for them.
I am very interested and turned on Government agents executed a search
by young teen and pre teens. Mike. warrant on Harrison’s house moments
after this delivery, seizing the videotapes
The undercover agent responded and Harrison’s computer, which contained
the next day with a message indicating that numerous pornographic pictures and video
he possessed sexually explicit videotapes images of children. While the search was
featuring children as young as eight years being executed, Harrison agreed to speak
2
to the agents. He told them he had been verbally accepted the portion of the plea
collecting child pornography for about agreement under which he acknowledged
seven months by downloading it onto his responsibility for the conduct charged in
computer from various Internet sites, but counts two and three.
that this was the first time he had traded
pornography. He admitted he had The maximum sentence under 18
downloaded the explicit pictures that he U.S.C. § 2252(a)(2) is fifteen years, and
later copied onto disks and mailed to the the base offense level is seventeen. The
undercover agent. He said he collected District Court used an offense level of
child pornography because he was “just twenty-five, which included eleven levels
curious,” and denied ever having sexual of enhancement and a three-level reduction
involvement with a child. for acceptance of responsibility. Together
with a criminal history category of II, this
A grand jury indicted Harrison on yielded a a guideline range of sixty-three
three counts. Count one charged him with to seventy-eight months imprisonment.
transporting child pornography in violation The Court sentenced Harrison at the
of 18 U.S.C. § 2252(a)(1), while counts bottom of this range: sixty-three months in
two and three, respectively, charged him prison, to be followed by three years of
with receiving child pornography in supervision.
violation of 18 U.S.C. § 2252(a)(2) and
possessing child pornography in violation The only issue is the District Court’s
of 18 U.S.C. § 2252(a)(4)(B). Harrison application of § 2G2.2(b)(5), which
agreed to plead guilty to count one under a provides for a two-level enhancement if “a
plea agreement which dismissed counts computer was used for the transmission of
two and three. The plea agreement further the material or a notice or advertisement of
stipulated that Harrison “acknowledges his the material.” Before the District Court’s
responsibility for the conduct charged in decision to apply the enhancement, both
Counts Two and Three of the Indictment” parties presented briefs and oral argument
and “that the conduct charged in those on the issue.
counts may be considered by the Probation
Office or by the District Court in imposing II.
sentence.”
Under 18 U.S.C. §§ 3742(a)(1) and
In the plea colloquy, the District (a)(2), this Court has jurisdiction to review
Court asked Harrison if he was admitting sentences imposed in violation of the law
to the transportation of child pornography or as the result of an incorrect application
that had been “obtained through the use of of the sentencing guidelines. This Court
a computer and shipped by way of the reviews a district court’s interpretation of
United States mail.” Harrison indicated the sentencing guidelines de novo, and a
that he admitted this charge, and also district court’s findings of fact supporting
3
application of the guidelines for clear The Seventh Circuit Court of Appeals
error. See United States v. Butch, 256 F.3d took a simila r approach to the
171, 177 (3d Cir. 2001). This Court also interpretation of § 2G2.2(b)(5) in United
reviews for plain error a district court’s States v. Richardson, 238 F.3d 837 (7th
determination of what constitutes relevant Cir. 2001). In Richardson, the defendant
conduct for the purposes of sentencing. pleaded guilty to receiving and possessing
See United States v. Perez, 280 F.3d 318, child pornography in violation of 18
352-54 (3d Cir. 2002). U.S.C. §§ 2252 (a)(2) and (a)(4), admitting
that he had downloaded more than 70,000
It is important to note at the outset pornographic images from the Internet. In
of this analysis that the language of § holding that the enhancement under §
2G2.2(b)(5) is phrased in the passive 2G2.2(b)(5) should apply, the court
voice. It does not say, as does a similar examined the structure of the sentencing
e n h a n c e m e n t u n de r U .S .S .G . § guidelines in regard to the child
2G2.4(b)(3), that the sentence shall be pornography statutes, and observed that
enhanced because of “the defendant’s use they seemed intended to impose the same
of a computer.” (emphasis added). Instead, punishment for receiving and sending
§ 2G2.2(b)(5) applies if “a computer was pornography:
used for the transmission of the material”
(emphasis added). The enhancement Use of the Internet enhances the
therefore applies whether the defendant dangers that child pornography
uses a computer to transmit “the material” poses, because it is a more discreet
to someone else, or someone else uses a and effic ient method of
computer to transmit “the material” to the distribution; but if this makes the
defendant. In other words, in the language sender more dangerous, it likewise
of § 2G2.2(b)(5), “transmission” covers makes the receiver more dangerous.
both the sending and the receiving of A market has two sides, supply and
pornographic material, so if the defendant demand; without both, the market
received child pornography by means of a collapses. The senders of child
computer, the enhancement is applicable. pornography supp ly it; the
This interpretation is consistent with the demanders receive it. The guideline
intent evident throughout the sentencing is acknowledged to treat both sides
guidelines for offenses involving child of the market symmetrically when
pornography, which apply the same any method of transmission other
penalties for receiving pornography as for than the Internet is used; it would
sending it – for example, all of the make no sense to treat them
enhancements under § 2G2.2 apply equally differently when the more ominous
to defendants guilty of “receiving, method is used.
t r a n sp o r t in g o r s h i p p in g ” c h i ld
pornography. Richardson, 238 F.3d at 842.
4
Based on this reasoning, the solicitation. . . . Under the
Richardson court concluded that guideline, those who seek out and
“‘computer . . . used for the transmission’ respond to notice and
in section 2G2.2(b)(5) of the sentencing advertisement of such materials are
guidelines does not mean, as the defendant as culpable as those who initially
argues, ‘computer . . . used by the send out the notic e and
defendant for the transmission’.” Id. at advertisement.
841. On the contrary, the court found it Id. at 259-60.
clear that the language of the guideline
was intended to cover receiving as well as The Eighth Circuit Court of
sending, and affirmed the application of Appeals made a similar finding in United
the enhancement to Richardson, who States v. Stulock, 308 F.3d 922 (8th Cir.
pleaded guilty to receiving pornographic 2002), in which the court affirmed the
images. application of the § 2 G2.2(b )(5)
enhancement to a defendant who had seen
Each of the other circuits that has an advertisement for a pornographic
addressed this issue has followed the lead videotape on the Internet, and then ordered
of the Seventh Circuit, in finding that § and received the tape by mail. The Stulock
2G2.2(b)(5) applies to receiving as well as court reviewed with approval the
sending. In United States v. Dotson, 324 reasoning employed in Richardson,
F.3d 256 (4th Cir. 2003), the Fourth finding that the intent of the guidelines
Circuit Court of Appeals held that the was fulfilled by punishing receivers with
computer enhancement was applicable to the same severity as senders. Id. at 925.
a defendant who responded to an The Sixth Circuit Court of Appeals
advertisement for child pornography likewise condoned the conclusions of the
posted on the Internet. The court found the Richardson court in United States v. Boyd,
guideline’s use of the passive voice 312 F.3d 213 (6th Cir. 2002), in which it
significant: approved the imposition of the
enhancement on a defendant convicted of
Had the Sentencing Commission receiving child pornography through his
intended to limit the scope of the computer.
enhancement to defendants who
forwarded notices or The facts in this case are not in
advertisements, it could have easily dispute. Harrison pleaded guilty to
done so by referring to the transporting through the mail visual
defendant in the text of the depictions of minors engaging in sexually
guideline. . . . In wording the explicit conduct, “such visual depictions
guideline as it did, the Commission having been obtained through the use of a
addressed not only the solicitor, but computer.” Harrison told a federal agent
also the recipient of such that he had downloaded some of the
5
specific pictures which he later sent to the computer.2 Therefore, Harrison argues, the
undercover federal investigator. During the source of the pornographic pictures can
sentencing hearing, Harrison’s attorney only be considered if it qualifies as
admitted that Harrison downloaded “relevant conduct” under U.S.S.G. §
pornographic images onto his computer, 1B1.3.
copied them onto disks, and later mailed
them to the federal agent. 1 Based on these This interpretation of the guidelines
facts, we find it clear that “a computer was is absurd. There is nothing illegal about
used for the transmission of the material” sending computer disks through the mail –
and that the District Court properly applied Harrison’s crime was the transmission of
§ 2G2.2(b)(5). the pornographic images contained on
those disks, not the disks themselves. The
Harrison attempts to sidestep the direct heading of § 2G2.2(b)(5) reinforces this
application of the guidelines by defining obvious reading, since it applies to
“the material” as the computer disks sent trafficking “in material involving the
to the undercover agent, rather than the sexual exploitation of a minor.” The words
pornographic material contained on those “the material” found later in the guideline
computer disks. By this reasoning, a refer back to this heading, and thus “the
computer had not been used to transmit material” means “the material involving
“the material,” because “the material” sexual exploitation of a minor.”
encompasses only the computer disks
themselves, which were unquestionably In Harrison’s case, “the material”
sent through the mail and not via a means the pornographic images contained
on the computer disks, and he does not
dispute that these images were transmitted
to him using a computer. In fact, the count
1. Harrison’s attorney does not
dispute that the images Harrison sent
through the mail had, at some point, been 2. Harrison’s attorney conceded
downloaded using his computer. During during oral argument before this Court
argument before the District Court, that § 2G2.2(b)(5) would apply if he had
Harrison’s attorney conceded that: been convicted of possession of child
“[E]veryone agrees that he obtained pornography, but argued that it did not
some of these images from downloading apply because that charge had been
them from the Internet, that he put those dropped. Since possession of
on disks, mailed them to the undercover pornography is an integral part of the
agent, and in return had the three video ability to traffic in pornography, and thus
tapes mailed to him.” Harrison’s attorney incorporated as part of Harrison’s
made a similar concession in oral offense of conviction, we do not find this
argument before this Court. distinction compelling.
6
to which Harrison pleaded g uilty accepted responsibility for this conduct,
specifically alleged that the images he sent and we have recognized that a sentencing
to the undercover agent had been enhancement, and even a departure from
downloaded from the Internet. Further, the the guidelines, can be applied based on
language of § 2G2.2(b)(5) is specifically conduct alleged in counts that were
targeted toward “the material” and not “the dismissed as result of a plea agreement.
offense,” as are other portions of § 2G2.2. See United States v. Baird, 109 F.3d 856,
The application of the enhancement, 864 (3d Cir. 1997). Although this conduct
therefore, does not hinge on whether the must be in some way “related” to the
defendant used a computer to commit “the offense conduct, it need not fit into the
offense” for which he was convicted. guidelines’ definition of relevant conduct
Instead, the enhancement hinges on “the found in § 1B1.3. Id. at 865.
material” implicated in the offense, and
whether this material had at some point In order to be “related” to the
been transmitted using a computer. There offense, “the acts in question must exhibit
is no dispute that “the material” in this commonalities of factors sufficient to
case had been so transmitted, and as a allow for a reasonable grouping of the
result, § 2G2.2(b)(5) is applicable. separate, individual acts into a larger,
descriptive whole. . . . [T]he similarities of
The District Court encourages the acts must arise from the character or
Harrison’s foray into the realm of relevant type of the acts.” Id. Certainly, the conduct
conduct by appearing to base its decision involved in receiving child pornography,
to grant the § 2G2.2(b)(5) enhancement on as charged in count two, is closely related
the conduct detailed in counts two and in character to the charge to which
three, which were dropped by the Harrison pleaded guilty – especially since
prosecution, but for which Harrison receiving pornographic images over the
accepted responsibility in the plea computer was an essential precursor to
agreement. The Court need not have taken later trading those images for pornographic
this extra step, since the conduct necessary videotapes. The District Court was
for the enhancement had been specified in therefore correct in its finding that this
the text of the count to which Harrison related conduct justified the application of
pleaded guilty, and thus made an integral the § 2G2.2(b)(5) enhancement, and no
part of the offense of conviction. The extra discussion of relevant conduct under §
step taken by the District Court, however, 1B1.3 is necessary.
takes us to the same place.
Harrison contends that downloading the
First of all, it was entirely pornography is not related conduct,
appropriate for the District Court to because he downloaded the pictures well
consider the conduct alleged in the before he made an agreement to trade
dismissed counts. Harrison explicitly
7
them.3 In any case, the temporal in the application of § 2G2.2(b)(5). The
relationship between the two actions is not guideline applies no matter who used the
decisive. If Harrison had not downloaded computer for transmission – the defendant
the images, he could not have trafficked in or another party – but it does not apply if a
them, and the two actions are therefore computer was used in a way which is not
closely tied. “transmission,” for example to help create,
alter, or copy pornography.
Harrison further contends that to
apply the guideline in his case would be to Harrison also contends that the
cause it to lose all its meaning, and turn it application of the “transmission”
into an enhancement that applies whenever enhancement to his case would obliterate
the defendant used a computer in some the distinction between “transmission” and
way related to the pornography, a role “distribution,” the word used in §
already filled by U.S.S.G. § 2G2.4(b)(3). 2G2.2(2)(A-E). The enhancements for
This argument ignores the fact that under distribution are not limited by any
our interpretation, the requirement that a particular method of distribution, however,
computer be used for “transmission” of the while “transmission” is specifically
pornography still plays an important role qualified by the requirement that it be by a
computer. The sections therefore serve
distinct purposes: § 2G2.2(b)(5) punishes
a specific method of transmission – by
3. Since Harrison told police he
computer – while § 2G2.2 (2)(A-E)
had only been downloading child
addresses other forms of distribution.
pornography for about seven months
Under these guidelines, handing out
before his arrest, the time lapse between
p o r n o g raphic l ea fl et s w o u l d b e
his downloading of the material and his
“distribu tion ,” but cle arly not a
use of it to barter can not have been that
“transmission” by computer.
great – especially because it was nearly
three months from the time Harrison first
III.
made contact with the undercover agent
to the time of his interview with police.
The enhancement under § 2G2.2(b)(5)
Harrison’s attorney asserted at
is also applicable to Harrison’s conduct
oral argument that the holding we make
because he used his computer to transmit
today would mean that the § 2G2.2(b)(5)
a “notice” of child pornography. The
enhancement would apply to a defendant
transportation of child pornography to
convicted of trafficking in pornography
which Harrison pleaded guilty would not
that he had downloaded from the
have been possible without the extensive
computer many years beforehand.
email correspondence that took place
Although we do not specifically decide
between Harrison and the undercover
this issue, neither are we particularly
federal agent. The communications began
troubled by the prospect.
8
when Harrison resp ond ed to an designating it as a “public” notice. Other
advertisement on the Internet announcing definitions of notice indicate that it may
the availability of videotapes containing m e a n m e r e l y “ i n f o rm a t i o n ” o r
child pornography. Harrison’s response to “[I]ntelligence by whatever means
the government agent’s advertisement was com mu nica ted.” B LACK’S L AW
to indicate his interest in the videotapes, D ICTIONARY 1061 (6th ed. 1990). As a
and to tell him in the process of bartering result, all that these definitions make clear
that he had “a lot of pics on all ages from is that the issue can not be decided through
5 to 17 mostly hardcore.” The government a battle of the dictionaries, and we must
argues this response is sufficient to look to the purpose and structure of the
constitute “notice . . . of the material” sentencing guidelines for aid.
under § 2G2.2(b)(5). We agree.
The purpose behind the child
It is not disputed that Harrison pornography sente ncing guidelines
transmitted a description of his supports a broad definition of the term
pornog raphy collection using his “notice.” The guidelines recognize the
computer, and this transmission is part and enhanced threat posed by the Internet,
parcel of the resulting transportation of the which greatly increases the ease with
specified pornographic materials through which child pornography may be traded.
the mail. The only question is whether a This ease is heightened by an offender’s
message to one person constitutes ability to find a suitable partner in a child
“notice,” or whether the term comprehends pornography “chat room,” with whom the
information posted to a wider audience, as offender may then trade anonymous emails
Harrison contends. The guidelines offer in order to establish terms for the sale or
little direct help on this question, as they barter of explicit materials. This method of
do not define what constitutes a “notice.” trafficking eliminates the need for
traditional forms of “notice and
Harrison cites to dictionaries for the advertisement” directed toward large
proposition that a notice is an numbers of people at random.
announcement, and an announcement is a
“public statement or notice.” Appellant’s Commenting on this method of
Reply Brief at 7 (citing to B LACK’S L AW communication, the Fourth Circuit Court
D ICTIONARY (7th ed. 1999) and of Appeals found that “the very nature of
W EBSTER’ S I I N E W R I V E R SIDE the Internet provides an ‘ominous method’
U NIVERSITY D ICTIONARY (1984)). On its for anonymous predatory criminal
face, these definitions are counterintuitive, conduct.” See Dotson, 324 F.3d at 260
since if the meaning of “notice” (quoting Richardson, 238 F.3d at 842).
comprehended that it was “public,” it Because the sentencing guidelines are
would not be necessary to modify the clearly aimed at targeting this sort of
definition of “announcement” by “ominous” conduct with enhanced
9
punishment, it makes sense to define Harrison also used a computer to transmit
“notice” in a way that will encompass the “notice or advertisement of the material.”
savvy and discreet trader in child
pornography, who is able to avoid the _____________________
more dangerous route of p ublic
advertisement that would expose his
scheme to an unselect audience.
In fact, the language of § 2G2.2(b)(5)
contemplates this broader definition of
“notice,” by contrasting it with an
“advertisement.” If “notice” is interpreted
to mean an announcement to the general
public, it leaves very little useful work for
the word “advertisement,” which is itself
defined as “a public notice.” See
W EBSTER’S N INTH N EW C OLLEGIATE
D ICTIONARY 59 (1988). We assume that by
including both terms, the drafters meant
there to be a difference between them –
“advertisement” implicates announcement
to a wider audience, while “notice” may
simply mean the communication of
information to another party. As a result,
we hold that by sending an email telling
the undercover agent that he possessed a
variety of pornographic “pics,” Harrison
used his computer to transmit a “notice” of
child pornography, as contemplated under
§ 2G2.2(b)(5).
IV.
For the reasons set forth above, we find
that the District Court properly applied the
two-level sentencing enhancement under
U.S.S.G. § 2G2.2(b)(5), because “a
computer was used for the transmission of
the material” that Harrison later mailed to
the undercover agent, and because
10