U.S. v. Dyer

• Decision Date: 28 December 2009
• Docket Number: No. 08-1343.,08-1343.
• Citation: 589 F.3d 520
• Parties: UNITED STATES, Appellee, v. Mark David DYER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

589 F.3d 520

UNITED STATES, Appellee, v. Mark David DYER, Defendant, Appellant.

No. 08-1343.

United States Court of Appeals, First Circuit.

Heard September 10, 2009.

Decided December 28, 2009.

William S. Maddox, for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney was on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and RIPPLE^*, Circuit Judges.

LYNCH, Chief Judge.

At issue is the meaning and application of a 2003 Sentencing Guideline for possessing child pornography, § 2G2.4(c)(2), which instructed sentencing judges to apply the stiffer penalties for trafficking in child pornography cases "[i]f the offense involved trafficking in material involving the sexual exploitation of a minor ... including ... possessing material involving the sexual exploitation of a minor with intent to traffic." U.S.S.G. § 2G2.4(c)(2). The issue is one of first impression for this circuit. The defendant, Mark David Dyer, primarily argues that the sentencing judge erred in determining that the evidence sufficed to establish he had an intent to traffic in child pornography under § 2G2.4(c)(2) of the 2003 Sentencing Guidelines, thus adding a minimum of thirteen additional months to the defendant's Sentencing Guidelines range. Despite this, the trial judge exercised his discretion to sentence below the range, and sentenced Dyer to sixty months in prison, followed by eight years of supervised release.

Dyer pleaded guilty to possession of child pornography, in violation of 18 U.S.C. § 2252(A)(a)(5)(B). The original guideline range for the total offense level under possession was fifty-seven to seventy-one months; the application of the trafficking guideline made it seventy to eighty-seven months. Dyer argues on appeal that the district court wrongly interpreted and applied § 2G2.4(c)(2), the trafficking cross-reference.

He also argues that the district court relied upon ex parte grand jury testimony to reach its factual conclusions and thereby violated his rights under the Confrontation Clause.

We disagree with both arguments and affirm his sentence based on the facts of this case.

I.

The basic facts are undisputed. On June 4, 2004, agents of the Federal Bureau of Investigation (FBI) executed a warrant to search the Brunswick, Maine residence of Mark David Dyer. The agents seized a computer hard drive and ten compact disks (CDs), all of which were later found to contain numerous images of child pornography.

Later that day, Dyer consented to an interview with Special Agents James Lechner and Paul Pritchard. Dyer told them that he owned the computer and the CDs and that no one else had access to them. The CDs, Dyer conceded, contained images that would likely qualify as child pornography. He admitted that he had downloaded what he estimated to be several thousand nude pictures of twelve—or thirteen-year-old girls, had saved these images on his computer, and had burned them onto CDs. He obtained these images, he told Agents Lechner and Pritchard, either by temporarily joining subscription-only websites or through the use of the LimeWire peer-to-peer file-sharing program. Dyer used these methods once or twice a week to obtain new pornographic images of prepubescent girls aged fourteen or younger. When asked about a notebook seized during the search, Dyer explained that he had used it to list common keywords like "pedo," "teen," and "pre-teen" that he entered into LimeWire to find new files.

Dyer had used LimeWire for two years and explained his understanding of the program to Agents Lechner and Pritchard. He knew, he said, that when he downloaded photographs or videos from LimeWire, the program saved the files in a "Completed Folder" on his hard drive. This folder, Dyer noted, was automatically treated as a "shared" folder by the LimeWire software. Dyer knew that anything he downloaded would therefore be available for other LimeWire users to keyword search and download. He also knew how to stop the material from getting to other LimeWire users. To prevent this file folder from being shared with other users, Dyer added, he would have had to transfer the file to another location on his hard drive. He had not done so.

Forensic analysis of Dyer's computer and CDs revealed several hundred images of what appeared to be child pornography. When the National Center for Missing and Exploited Children (NCMEC) analyzed the images at the FBI's request, it determined that Dyer had downloaded 952 photographs and four videos featuring known and actual child victims of sexual exploitation.

The most graphic of these images was a series featuring a single prepubescent girl. The NCMEC confirmed, and Dyer did not dispute, that the girl featured in these images was an actual child and a known victim of sexual abuse. One of the photographs in the series showed an adult male urinating on the young girl. In another photograph, the girl had been posed on a bed naked, with the words "cut me," "hurt me," and "slut" written across her torso. The image also showed someone holding a knife near her vagina. This image was saved under the file name "PTHC, Ultra Hard Pedo Child Porn Pedofilia (New) 061.JPEG." Dyer had stored the entire series featuring the girl in the "shared" folder on his computer hard drive, making it available to all LimeWire users.

Other files in Dyer's "shared" folder had titles such as "pthc—kely & camila07 young girls rub pussies together.jpg"; many included the acronym "pthc," standing for "pre-teen hard-core," in the title.

An August 22, 2007 indictment charged Dyer with knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).¹ On November 28, 2007, Dyer pleaded guilty to this charge in the federal district court of Maine.

The court applied the 2003 version of the Sentencing Guidelines in order to avoid ex post facto considerations. The pre-sentence report (PSR) submitted to the district court calculated a total offense level of 25 under the 2003 Sentencing Guidelines. The PSR used U.S.S.G. § 2G2.4, which applied to defendants convicted of possession of child pornography and carried a base offense level of 15, and adjusted the sentence upwards to reflect a number of relevant enhancements.²

At the pre-sentence conference, the government argued that the PSR should have applied the trafficking cross-reference in U.S.S.G. § 2G2.4(c)(2) and should have therefore used the trafficking provision rather than the possession provision to calculate Dyer's base offense level for sentencing. The sentence enhancement under the trafficking cross-reference should have been imposed, the government contended, because Dyer had manifested an intent to distribute the child pornography on his computer by making it accessible to other LimeWire users. Dyer argued that leaving files on a shared computer folder did not qualify as "trafficking" and that, in any event, there was insufficient evidence that he had intended to traffic in child pornography.³

At the sentencing hearing on March 13, 2008, Agent Lechner testified and was cross-examined regarding his interview with Dyer. Lechner described his role in the search of Dyer's residence, his subsequent interview with Dyer, and the FBI's ultimate conclusions regarding the quantity and nature of the images of child pornography discovered on Dyer's computer and CDs. He testified that Dyer had said during the interview that he understood that the child pornography downloaded onto his shared drive would be made available to other LimeWire users. The government also introduced Lechner's contemporaneous report of the interview into evidence. The report included Dyer's admission that he knew how to prevent the files from being shared. He had opted not to disable this feature. Another exhibit displayed the results of the forensic analysis of Dyer's computer and a selection of the more graphic images discovered in Dyer's "shared" folder. Dyer did not introduce any evidence at sentencing.

On the basis of this evidence and a Fifth Circuit case involving similar facts, United States v. Todd, 100 Fed.Appx. 248 (5th Cir.2004), the district court applied the trafficking cross-reference in U.S.S.G. § 2G2.4(c)(2). However, it did so on the basis of the specific facts of the case and implicitly rejected the government's argument that any use of LimeWire would automatically constitute trafficking due to the program's file-sharing features. "Trafficking," the sentencing judge noted, included bartering, and Dyer had exhibited an "intent to traffic" by knowingly making images of child pornography available to other LimeWire users. The sentencing judge emphasized the facts essential to this conclusion: Dyer had told Agent Lechner that he knew that any file downloaded from LimeWire would be available to other users; he knew where LimeWire stored the files he downloaded on his computer, and that they could be accessed and downloaded by other LimeWire users; he knew that he could have moved the file to a different location to prevent other users from accessing it; and he had used LimeWire for two years, during which he downloaded files and had his own files available for download. These acts, the sentencing judge found, demonstrated an intent to traffic within the meaning of § 2G2.4(c)(2). The sentencing judge also determined that this conclusion was consistent with Congress's intention to punish those who furthered the market for child pornography more severely, reasoning that file-sharing was qualitatively different from mere possession of files on an inaccessible computer hard drive location.

In calculating Dyer's sentence, the sentencing judge emphasized that Dyer had pleaded guilty to an exceptionally serious offense that involved the sexual abuse of real children. But the sentencing judge also acknowledged that Dyer had received an honorable discharge from the United States Navy and was a first-time offender who had...