U.S. v. Mohrbacher

• Decision Date: 29 June 1999
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 98-10009,98-10009
• Citation: 182 F.3d 1041
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA,, v. DANIEL ZANE MOHRBACHER,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1041

182 F.3d 1041 (9th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. DANIEL ZANE MOHRBACHER, DEFENDANT-APPELLANT.

No. 98-10009

U.S. Court of Appeals, Ninth Circuit

Argued and Submitted February 8, 1999

Decided June 29, 1999

[Copyrighted Material Omitted]

Michael Bradley Bigelow, Sacramento, California, for the defendant-appellant.

Miguel Rodriguez, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding D.C. No. CR-95-00296-WBS

Before: Phyllis A. Kravitch,^* Stephen Reinhardt, and Thomas G. Nelson, Circuit Judges.

Opinion by Judge REINHARDT, and

Concurrence by Judge T.G. NELSON

REINHARDT, Circuit Judge

Daniel Zane Mohrbacher appeals two counts of conviction under 18 U.S.C. S 2252(a)(1) for transporting visual depictions of minors engaged in sexually explicit conduct. He does not challenge his other two counts of conviction, one for receiving visual depictions of minors engaging in sexually explicit conduct under 18 U.S.C. S 2252(a)(2) and the other for possession of three or more items containing such depictions under S 2252(a)(4)(b). Mohrbacher's illegal conduct consisted of downloading images of child pornography from a foreign-based electronic bulletin board. As to the challenged counts, he argues that he was charged and convicted under the wrong section of the statute because while he may have received these images in violation of S 2252(a)(2) he did not transport or ship them in violation of S 2252(a)(1). We agree with his reading of the statute, and accordingly reverse these two counts of conviction. However, we reject Mohrbacher's second contention on appeal, and hold that the district court did not clearly err by denying him credit for acceptance of responsibility.

I. BACKGROUND

In March 1992, Danish police seized the business records of BAMSE, a computer bulletin board system based in Denmark that sold child pornography over the Internet. The records included information that Mohrbacher, who lived in Paradise, California, had downloaded two graphic interface format (GIF) images from BAMSE in January 1992.

In March 1993, police executed a search warrant at Mohrbacher's workplace and found, among other images, two files that had been downloaded from BAMSE, one of a nude girl and one of a girl engaged in a sex act with an adult; both girls were under twelve. During the execution of the warrant, Mohrbacher was cooperative, confessing that he had downloaded the two images from BAMSE, showing police where they could find the images that they were looking for on his computer, and providing telephone records that confirmed the dates of his Internet activity. Mohrbacher subsequently cooperated with the government's investigation of child pornography. He made monitored telephone calls to a number of electronic bulletin boards, provided the name of one bulletin board operator, and testified at a grand jury hearing. At that hearing, Mohrbacher again admitted that he had downloaded at least one of the two images.

In May 1996, Mohrbacher was indicted for one count of transporting visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. S 2252(a)(1) and one count of possession of three or more items depicting sexually explicit conduct in violation of 18 U.S.C.S 2252(a) (4)(B). Pursuant to a plea agreement, Mohrbacher entered a guilty plea to count two in February 1997. In September 1997, however, with the consent of the government and the district court, this guilty plea was withdrawn because the factual basis that had been established no longer constituted a crime under 18 U.S.C. S 2252(a)(4)(B). See United States v. Lacy, 119 F.3d 742, 747 (9th Cir. 1997), cert. denied, 118 S.Ct. 1571 (1998) (holding that knowledge of the nature of the material is an element of the offense of possessing child pornography). At the hearing on Mohrbacher's motion to withdraw his plea, the prosecutor appeared ambivalent about pursuing another plea bargain. He first commented that "there would be no plea offer on the table from the United States," but when the Judge pointed out that further negotiations were not precluded he expressed his agreement with that observation. Through his attorney and his own statements to the Judge, Mohrbacher communicated his frustration with the pace of the proceedings and with the impact that the case was having on his family,¹ and announced that he was unwilling to continue waiving time and planned to insist on his right to a speedy trial. He also claimed that he had not known the nature of the child pornography at the time that he downloaded it.

The grand jury then reindicted Mohrbacher under a superseding indictment for two counts of transporting visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. S 2252(a)(1), one count of receipt of visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. S 2252(a)(2), and one count of possession of three or more items depicting sexually explicit conduct in violation of 18 U.S.C. S 2252(a)(4)(B). The government represents that on a number of subsequent occasions it approached Mohrbacher in order to negotiate a plea agreement.² No plea agreement was reached, and the case proceeded to trial.

Mohrbacher's trial began on September 30, 1997. On October 3, he made a Rule 29 motion for acquittal on the transporting counts, arguing that downloading images constituted receiving, rather than transporting or shipping, within the common sense meaning of the statute. The district court denied the motion, reasoning that downloading from a computer bulletin board was analogous to "the seller putting [an item] on his shelf and the buyer being the person who takes it off the shelf. Here, it was Mr. Mohrbacher who pushed the right buttons that caused the images to be sent from Denmark to California." The court also stated that Mohrbacher could be criminally liable for causing the images to be transported under 18 U.S.C. S 2,³ commenting that "[i]t was Mr. Mohrbacher who caused the images or visual depiction to be transported in foreign commerce."

At the trial, in addition to the witnesses who linked Mohrbacher directly to the images that were the subject of the criminal charges, the prosecution presented expert testimony about the operation of the bulletin board. The expert witness testified that "[a] computer bulletin board system is kind of like a store of sorts. There's the capability of sending and receiving files and sending and receiving messages. " Having studied BAMSE for two years, he provided the following description of it:

"BAMSE was a computerized bulletin board system. The bulletin board system is an automated system that runs 24 hours a day, seven days a week. That's a computer system that allows people to connect to it via computer and telephone modem. Once users connect to the BBS, they log in as a user name, they provide a password, and the BBS has a list of images available for download. Individuals would select pic tures, then download them to their computer.... The image files on the BAMSE BBS were GIF files, which stands for graphic interchange files. It's just a binary string of information. It's the computer's way of representing a visual image."

The expert described the process of downloading GIF image files, explaining that the bulletin board user selects an image and uses his own computer modem to download the image file through telephone lines. Once downloading has been completed, the image is contained in the user's own computer system. No human conduct is required at the bulletin board site in order to facilitate this file transfer. When asked whether a "store" analogy was appropriate, the expert agreed but then described one difference: when a customer purchases an item on the bulletin board, the supply is not depleted -rather, a copy of the original product is generated and sent. On cross-examination, he agreed that defense counsel's analogy to a mail order catalogue was fair, and the following exchange ensued in which Mohrbacher's attorney attempted to demonstrate how downloading would compare to calling in a mail order:

"Q. I would call them on their catalog order number."

"A. Okay."

"Q. And I would either be connected with a human being or with, in your world -"

"A. Computer."

"Q. -- some computer. So the computer's just a substitute for the human being who initially we used to contact; isn't that right?"

"A. Sure."

"Q. Just a way of doing business. Instead of the human being responding, the computer responds?"

"A. Sure. A lot of the sites have that with the Internet access right now."

"Q. Sure. So what we're doing as the businessman that runs Penney's, I've substituted my computer system, which guys like you developed, for the human being I used to have to pay too much money?"

"A. Okay."

"Q. Now the BBS is the same program; is it not?"

"Q. Same idea we're going with, yeah."

"...."

"A. A systems operator is like a storekeeper or shopkeeper. He buys computer hardware, he buys BBS software, and he has his goods that he wants to sell. And he has to customize the BBS software to reflect what merchandise he wants to sell. He needs to create his catalog, if you will."

"Q. Sure. So if he didn't have all this computer stuff, what he'd have is a room with a bunch of -- like a wall with little compartments in it?"

"A. Sure."

"Q. And you'd call him up, and he'd walk over, and he'd pull it out of the compartment, and he'd send it to you if you paid him for it?"

"A. Sure."

"Q. So instead of having the sysop [systems operator] do the shipping, you've got the computer doing the shipping?"

"A. Correct."

During the presentation of the prosecution's case, Mohrbacher's attorney challenged and attempted to impeach some of the witnesses....