U.S. v. Shaffer

• Decision Date: 03 January 2007
• Docket Number: No. 06-3145.,06-3145.
• Citation: 472 F.3d 1219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aaron SHAFFER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

472 F.3d 1219

UNITED STATES of America, Plaintiff-Appellee, v. Aaron SHAFFER, Defendant-Appellant.

No. 06-3145.

United States Court of Appeals, Tenth Circuit.

January 3, 2007.

Christopher M. Joseph, Joseph & Hollander, P.A., Topeka, KS, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Eric F. Melgren, United States Attorney, and Christine E. Kenney, Assistant United States Attorney, on the brief), Topeka, KS, for Plaintiff-Appellee.

Before MURPHY, McKAY, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Aaron Shaffer challenges his conviction for distribution and possession of child pornography, see 18 U.S.C. §§ 2252A(a)(2), 2252A(a)(5)(B), on four grounds. Primary among these, Mr. Shaffer claims that he did not, as a matter of law or fact, "distribute" child pornography when he downloaded images and videos from a peer-to-peer computer network and stored them in a shared folder on his computer accessible by other users of the network. Mr. Shaffer also asserts that the District Court improperly limited the testimony of one of his expert witnesses, wrongly admitted certain Fed.R.Evid. 404(b) evidence, and erroneously instructed the jury. Finding none of these arguments persuasive, we affirm.

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Kazaa is a peer-to-peer computer application that allows users to trade computer files through the Internet. See generally Aplt.App. at 77-78, 80-81, 89-92, 183-84, 384-86.¹ It is hardly a unique service; at any one time today, there are apparently in excess of four to five million people online sharing over 100 million files. Id. at 90. Users begin at Kazaa's website. There, they obtain the software necessary for file trading by clicking an installation "wizard"² that walks them through a step-by-step setup process. Id. at 81-84; see also generally Aple.App. at 27-49. Before installation, the wizard requires users to acknowledge and accede to Kazaa's licensing agreement. Aplt.App. at 84; see also Aple.App. at 31. Users then identify a destination on their computers where they want the Kazaa file sharing software located, and Kazaa creates a "shortcut" icon on the user's desktop. Aplt.App. at 84-85. Upon installation, Kazaa's software walks users through certain steps to create a folder called "My Shared Folder" (hereinafter, "shared folder") on their computer's hard drive. Id. at 86-87. Here, Kazaa users store the files they download from the shared folders of other Kazaa users. Id. at 94, 398-99. At the same time, anything one has in one's own Kazaa shared folder may be accessed and downloaded by other Kazaa users. Id. at 94-95, 398-99.³ The only requisites are that both users—the one whose files are being transferred as well as the one who is receiving the files—must be on the Internet and have the Kazaa software application open at the same time. Id. at 393-94. Kazaa's software also shows the user in real time exactly how many of his or her files are being accessed and copied by other Kazaa users. Id. at 87-88. A user can, however, select an option that precludes other users from downloading materials from his or her computer. Id. at 88-89.⁴

To download an item from another computer's shared folder, a Kazaa user simply double clicks on that file, and it is then transferred to the shared folder on the recipient user's computer. Aplt.App. at 91. There are only two ways for items to be placed in a user's shared folder. First, one must go online, search for an item, and download the material into the shared folder. Id. at 94. Second, one may take files already existing on his or her computer and move them into the shared folder. Id. at 94-95. Either way, the placement of items in one's shared folder involves a conscious effort. Id. A user can of course move items out of the shared folder to other folders on his or her computer, and doing so precludes other Kazaa users from accessing and downloading such material. Id. at 95.

This case arose when Ken Rochford, an Arizona-based special agent from the United States Department of Homeland Security's Bureau of Immigration and Customs Enforcement ("ICE"), noticed that a certain Kazaa account user with the screen name shaf@Kazaa had in his shared folder accessible to other Kazaa users a large number of files containing images and videos of child pornography. See Aplt.App. at 95-111, 1152-73. Special Agent Rochford sought to download some of those images from shaf@Kazaa's computer onto his own and had no difficulty doing so. Id. at 97-111.

Authorities later learned that the user associated with shaf@Kazaa was Mr. Shaffer, then a 27-year-old college student living with his mother and stepfather in Topeka, Kansas. David Zimmer, a Kansas-based ICE special agent, obtained and executed a search warrant on Mr. Shaffer's residence and computer. See id. at 204-49. ICE special agents ultimately found within Mr. Shaffer's Kazaa shared folder approximately 19 image files and 25 videos containing child pornography, along with text documents describing stories of adults engaging in sex with children. See id. at 267, 273-300; see also Aple.App. at 50-57.

During the course of the search of his home and computer, Mr. Shaffer consented to an interview with Special Agent Zimmer. See Aplt.App. at 213-15. During that interview, according to Special Agent Zimmer's testimony at trial, Mr. Shaffer admitted to being the sole user of the computer in his home; employing the screen name shaf@Kazaa; and knowingly downloading through Kazaa 100 movies and 20 still photos involving child pornography, which he estimated occupied a total of approximately 10 gigabytes. See id. at 220-24, 228-29. Mr. Shaffer defined child pornography for Special Agent Zimmer as involving prepubescent children as young as six or seven years old. Id. at 220, 222. Mr. Shaffer further admitted that he stored images of child pornography in his Kazaa shared folder. Id. at 223, 226-27. He explained that he did so because, among other things, Kazaa gave him "user points" and various incentive rewards corresponding to how many images other users downloaded from his computer. Aplt.App. at 227-28. Mr. Shaffer indicated he knew that other people had downloaded child pornography from him. Id. at 228. And he stated that it takes up to 100 hours to download certain files using Kazaa, so sometimes when he went to work he would leave his computer on in order to make his images and videos available for download by other users. Id.

Mr. Shaffer also testified at trial. He did not dispute that he gave an interview to Special Agent Zimmer or much of Special Agent Zimmer's description of that interview. See, e.g., id. at 459-61. Mr. Shaffer did testify, however, that he could not recall telling Special Agent Zimmer that he knew other Kazaa users had downloaded child pornography from his computer. See Aplt.App. at 460. After a four-day trial, a jury returned guilty verdicts against Mr. Shaffer for both possession and distribution of child pornography. Id. at 58. The District Court subsequently sentenced him to 60 months of incarceration. Id. at 558.

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1. Mr. Shaffer contends there was insufficient evidence presented at trial to sustain his conviction for distribution of child pornography.⁵ Under Section 2252A(a)(2), it is unlawful for a person knowingly to distribute child pornography by any means, including by computer.⁶ Mr. Shaffer frankly concedes that "[h]e allowed, or caused, distribution by leaving files on his computer that other Kazaa users could access." Aplt. Br. at 22. He also now concedes that a rational jury could infer that he did so knowingly (and even intentionally): "[A] reasonable jury could conclude from this evidence that Mr. Shaffer intended to allow others to take the material from his computer." Id. But, Mr. Shaffer argues, to "distribute" something, a person must actively transfer possession to another, "such as by mail, e-mail, or handing it to another person." Id. And here, Mr. Shaffer contends, he was only a passive participant in the process; there is no evidence that he "personally complete[d] any [such] transaction." Id.

The relevant statute does not itself define the term "distribute," so we look to how the term is understood as a matter of plain meaning. Black's offers this definition: "1. To apportion; to divide among several. 2. To arrange by class or order. 3. To deliver. 4. To spread out; to disperse." Black's Law Dictionary 508 (8th ed.2005). Webster's adds this understanding: "to divide among several or many . . . deal out . . . apportion esp. to members of a group or over a period of time . . . [allot] . . . [dispense] . . . to give out or deliver." Webster's Third New Int'l Dictionary Unabridged 660 (2002). The instruction offered by the District Court to the jury captured much the same sentiment: "To distribute something simply means to deliver or transfer possession of it to someone else."

We have little difficulty in concluding that Mr. Shaffer distributed child pornography in the sense of having "delivered," "transferred," "dispersed," or "dispensed" it to others. He may not have actively pushed pornography on Kazaa users, but he freely allowed them access to his computerized stash of images and videos and openly invited them to take, or download, those items. It is something akin to the owner of a self-serve gas station. The owner may not be present at the station, and there may be no attendant present at all. And neither the owner nor his or her agents may ever pump gas. But the owner has a roadside sign letting all passersby know that, if they choose, they can stop and fill their cars for themselves, paying at the pump by credit card. Just because the operation is self-serve, or in Mr. Shaffer's parlance, passive, we do not doubt for a moment that the gas station owner is in the business of "distributing," "delivering," "transferring" or "dispersing" gasoline; the raison d'etre of owning a gas station is to do just that. So, too, a reasonable jury...