U.S. v. Griffin

• Citation: 482 F.3d 1008
• Decision Date: 03 April 2007
• Docket Number: No. 06-2905.,06-2905.
• Parties: UNITED STATES of America, Appellee, v. James Donald GRIFFIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

482 F.3d 1008

UNITED STATES of America, Appellee, v. James Donald GRIFFIN, Appellant.

No. 06-2905.

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2007.

Filed: April 3, 2007.

John O. Moeller, argued, Davenport, IA, for appellant.

Edwin F. Kelly, Jr., argued, Asst. U.S. Atty., Des Moines, IA (Joel W. Barrows, Asst. U.S. Atty., Davenport, IA, on the brief), for appellee.

James Donald Griffin, Des Moines, IA, pro se.

Before MURPHY, HANSEN, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

James Griffin pleaded guilty to receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The district court¹ determined that Griffin's Guideline sentencing range was 87 to 108 months' imprisonment, after concluding that Griffin was subject to a five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(2)(B). The enhancement was applied because Griffin's offense conduct involved the distribution of child pornography "for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." The court ultimately sentenced Griffin to 78 months' imprisonment. Griffin appeals the court's imposition of the five-level distribution enhancement. We affirm.

I. Background

During an investigation of child pornography distribution in Denmark, Danish police seized a computer, pursuant to a search warrant, from a Danish residence. Forensic analysis of the seized computer revealed that a partially downloaded file containing child pornography had been downloaded to the computer from an Internet Protocol (IP) address that was traced to Griffin, a Davenport, Iowa resident. Local authorities obtained and executed a search warrant on Griffin's residence after Danish authorities relayed this information to them. Law enforcement officers seized a computer and several CD-ROMs containing approximately 67 video clips of child pornography from Griffin's residence.

A grand jury indicted Griffin for receiving child pornography, possessing child pornography, and forfeiture. Griffin pleaded guilty, without a plea agreement, to receiving and possessing child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) & (a)(4)(B), and agreed to the forfeiture.

The presentence investigation report (PSR) concluded that Griffin's offense level was subject to a five-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(2)(B),² because Griffin's offense conduct involved the distribution of child pornography "for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." Griffin objected to this enhancement, denying that he distributed any child pornography and arguing that even if a distribution occurred, he did not distribute the images for the receipt, or the expectation of receipt, of a thing of value.

Griffin admitted that he downloaded child pornography from Kazaa³—an internet peer-to-peer file-sharing network—but maintains that he only downloaded the images and videos for his personal use, not for distribution to others. However, Griffin also admitted that he knew Kazaa was a file-sharing program and knew that, by using Kazaa, other Kazaa users could also download files from his computer. The government asserted that Griffin's use of Kazaa with knowledge of its capabilities constituted distribution. By using the file-sharing site, Griffin enabled other Kazaa users to download files from Griffin's shared folder, including any child pornography files stored there. Otherwise, the government argued, Danish police could not have traced the partially downloaded child pornography clip discovered in Denmark back to Griffin.

The district court conducted an evidentiary hearing on the enhancement prior to sentencing Griffin. At the hearing, Agent Kevin Lang, with the Immigration and Customs Enforcement's public safety unit (which investigates, among other things, child sex crimes) testified that during an interview with agents that executed the search warrant at Griffin's residence, Griffin admitted to being the primary user of the computer seized and admitted that he had downloaded child pornography to his computer using Kazaa. Lang also testified that Griffin admitted that he knew that by using Kazaa he would be able to download files from other Kazaa users and that other Kazaa users would be able to download files from him. Agent Lang acknowledged that when Griffin's computer was seized, the Kazaa program and Griffin's shared folder had been deleted from the computer, making Griffin unable to distribute images via Kazaa at that time. However, Agent Lang testified that forensic analysts had recovered several deleted child pornography files that had been previously stored in a shared folder on Griffin's computer. Further, Lang testified that Griffin's IP address was attached to the partially downloaded child pornography file discovered by Danish authorities. The presence of Griffin's IP address established that the partially downloaded file had previously been on Griffin's computer, had been available for distribution, and was in fact distributed.

The district court concluded that the five-level enhancement applied, finding that Griffin had distributed child pornography by making images of child pornography available to others via the file-sharing network and that Griffin had an expectation of receiving pornographic images—a thing of value—in exchange for the images he made available to others. Griffin appeals, arguing that the court erred in finding that his use of a peer-to-peer file-sharing network to download images of child pornography warranted the imposition of the five-level enhancement under U.S.S.G. § 2G2.2(b)(2)(B).

II. Discussion

On an appeal of a district court's Guidelines sentencing enhancement, we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Goldman, 447 F.3d 1094, 1096 (8th Cir.2006).

Under § 2G2.2(b)(2)(B), a five-level increase should be imposed on a defendant guilty of receiving or possessing child pornography if the offense involved "distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." U.S.S.G. § 2G2.2(b)(2)(B). For purposes of this guideline,

"Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain" means any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. "Thing of value" means anything of valuable consideration. For example, in a case involving the bartering of child pornographic material, the "thing of value" is the child pornographic material received in exchange for other child pornographic material bartered in consideration for the material received.

Application Note 1 of U.S.S.G. § 2G2.2. Additionally, "`[d]istribution' means any act including production, transportation, and possession with intent to distribute, related to the transfer of material involving the sexual exploitation of a minor." Id. (emphasis added).

This case presents the issue of whether an expectation of receipt of child pornography through Kazaa file sharing constitutes a "thing of value, but not for pecuniary gain" for sentence enhancement purposes under § 2G2.2(b)(2)(B). While this is an issue of first impression, it is not the first time our circuit has discussed Kazaa. In a factually similar case, we recently described how Kazaa works:

Kazaa allows its users to utilize the Internet to search for specific terms in the file names and descriptive fields of files located in any other Kazaa user's My Shared Folder. A Kazaa user can then download these files from the other user's My Shared Folder. The downloaded file will automatically be placed in the user's My Shared Folder to be searched and downloaded by other users unless the local user disables this feature.

United States v. Sewell, 457 F.3d 841, 842 (8th Cir.2006).⁴ In Sewell, we noted that by using Kazaa to download images of child pornography, the defendant "made these images available to be searched and downloaded by other Kazaa users by failing to disable the Kazaa feature that automatically places the files in a user's My Shared Folder." Id. Like the defendant in Sewell,...