U.S. v. Sewell

• Citation: 513 F.3d 820
• Decision Date: 17 January 2008
• Docket Number: No. 07-1991.,07-1991.
• Parties: UNITED STATES of America, Appellee, v. Walter E. SEWELL, also known as food4less, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

513 F.3d 820

UNITED STATES of America, Appellee, v. Walter E. SEWELL, also known as food4less, Appellant.

No. 07-1991.

United States Court of Appeals, Eighth Circuit.

Submitted: November 13, 2007.

Filed: January 17, 2008.

Eric A. Chase, Studio City, CA, for appellant.

James C. Bohling, Asst. U.S. Atty., Kansas City, MO (John F. Wood, U.S. Atty., Philip M. Koppe, Cynthia L. Cordes, Asst U.S. Attys., on the brief), for appellee.

Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.

WOLLMAN, Circuit Judge.

Walter E. Sewell was charged, inter alia, with publishing or causing to be published a notice that offered to distribute child pornography in violation of 18 U.S.C. § 2251(d)(1)(A). Sewell filed a motion to dismiss for failure to state an offense. The district court¹ denied the motion, and Sewell appeals. We affirm.

I. Background

Sewell admits that he acquired and distributed child pornography using a peer-to-peer file-sharing program called Kazaa, Kazaa is a computer program that connects a computer to other computers on which the Kazaa program is also running. Kazaa's purpose is to allow users to download each other's shared files. The Kazaa program allows the user to designate which folders—and therefore which files— on his computer are shared with other Kazaa users. Each shared file has several descriptive fields that are viewable by other Kazaa users. These fields generally describe the file's contents and can be edited by a file's possessor. Kazaa makes each user's shared files discoverable to other users by allowing any user to perform a keyword search of the descriptive fields of all shared files. Files with descriptive fields containing the search term are listed for the searcher, who can then see all the descriptive fields for each file on the list. Based on these descriptions, the searcher decides which of the available files to download onto his computer. The searcher is likewise free to refrain from downloading a file in which, based on its descriptive fields, the searcher is uninterested.

Sewell was indicted on several counts, including publishing and attempting to publish a notice that offered to distribute child pornography, distributing and attempting to distribute child pornography, and possession of child pornography in violation of various provisions of 18 U.S.C. §§ 2251 and 2252. In a prior interlocutory appeal stemming from those charges, we reversed an order that would have prohibited the government from showing at trial some of the actual pictures recovered from Sewell's computers. See United States v. Sewell, 457 F.3d 841 (8th Cir.2006). Sewell was subsequently charged with one count of publishing a notice that offered to distribute child pornography in violation of § 2251(d)(1)(A).² He then pleaded guilty to one count of distributing child pornography and to one count of publishing a notice. He preserved, however, his right to file the motion to dismiss the § 2251(d)(1)(A) charge and to appeal an adverse disposition of that motion.

II. Analysis

We review de novo a district court's denial of a defendant's motion to dismiss an indictment for failure to state an offense. United States v. Hirsch, 360 F.3d 860, 863 (8th Cir.2004). An indictment adequately states an offense if:

it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted.

United States v. Hernandez, 299 F.3d 984, 992 (8th Cir.2002) (quoting United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993)). An indictment is normally sufficient if its language tracks the statutory language. Handing v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.E d.2d 590 (1974).

Sewell was charged with violating 18 U.S.C. § 2251(d)(1)(A), which criminalizes behavior that "knowingly makes ... or causes to be made ... any notice ... offering ... to ... distribute[] or reproduce" child pornography across state lines. Sewell concedes that his actions in using Kazaa to download and distribute child pornography across state lines were done knowingly and that he was responsible for child pornography being in his shared folder. See generally United States v. Shaffer, 472 F.3d 1219 (10th Cir.2007) (discussing in detail how Kazaa works and holding that the use of Kazaa to share child pornography is sufficient to uphold a conviction for the knowing distribution of child pornography). Sewell argues that the indictment does not allege that the notice contained an offer to distribute child pornography, which is an essential element of the offense.

It is not disputed that the charging language closely...