United States v. Caparotta

• Decision Date: 10 September 2012
• Docket Number: No. 11–CR–817 (S–1) (KAM).,11–CR–817 (S–1) (KAM).
• Citation: 890 F.Supp.2d 200
• Parties: UNITED STATES of America v. Francesco CAPAROTTA, Defendant.
• Court: U.S. District Court — Eastern District of New York

890 F.Supp.2d 200

UNITED STATES of America

v.Francesco CAPAROTTA, Defendant.

No. 11–CR–817 (S–1) (KAM).

United States District Court, E.D. New York.

Sept. 10, 2012.

Douglas M. Pravda, United States Attorney's Office, Brooklyn, NY, for United States of America.

Martin G. Goldberg, Franklin Square, NY, for Defendant.

MEMORANDUM AND ORDER

MATSUMOTO, District Judge:

Defendant Francesco Caparotta (“defendant”) is charged with distributing, receiving, and possessing child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). Presently before the court is defendant's motion to (1) dismiss the charges for distribution of child pornography; (2) inspect the grand jury minutes; and (3) declare unconstitutional the five-year mandatory minimum sentence for receipt of child pornography. ( See ECF No. 30, Defendant's Argument (“Def. Arg.”).) ¹ The government opposes defendant's motion ( see ECF No. 32 (“Gov't Opp'n”)), and defendant filed a reply brief ( see ECF No. 33 (“Def. Reply”)). Oral argument on defendant's motion was held on September 7, 2012. Having reviewed the parties' submissions and the relevant case law, for the reasons set forth below, defendant's motion is denied in its entirety.

BACKGROUND

The facts surrounding the government's investigation of defendant and his arrest do not appear to be disputed by the defendant. According to the government and the complaint filed in this case ( see ECF No. 1, Complaint (“Compl.”)), on August 15, 2011, a Special Agent (the “Agent”) of the Federal Bureau of Investigation (“FBI”) working in an undercover capacity signed into a publicly available peer-to-peer file-sharing program (a “P2P program”) via an internet-connected computer at an FBI office in Florida. ( Id. ¶ 3.) P2P programs, which are used largely for sharing of digital music, images, and video, are “so called because users' computers communicate directly with each other, not through central servers.” MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919–20, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005).² Generally, a P2P program user can search for files made available by all other users, browse all the files made available by a particular user, and download desired files. See United States v. Chiaradio, 684 F.3d 265, 271 (1st Cir.2012) (describing LimeWire). A P2P program user can make his files accessible for browsing and downloading by other users by placing such files into a designated folder (the “shared folder”) that will automatically share its contents with the network. Id.

After logging on to the P2P program, the Agent conducted a search for child pornography and received a response from an Internet Protocol address (“IP address”) associated with a computer later determined to be located at defendant's residence (the “Computer”). (Compl. ¶¶ 4, 6–7.) Because the Computer had been configured to permit browsing and downloading of its shared folder by other users of the P2P program, the Agent was able to connect with the Computer and obtain a list of the files in its shared folder. ( Id. ¶¶ 4–5.) After determining that several files in the shared folder had filenames consistent with child pornography, the Agent downloaded nine image files and one video file from the Computer's shared folder, all of which appeared to be child pornography.³ ( Id. ¶ 5.)

On October 27, 2011, the government executed a search warrant for defendant's residence—the location of the Computer—during which the defendant was present, and the defendant admitted to downloading child pornography for fifteen years, including via a P2P program called “Bearshare.” ( Id. ¶ 8.) The defendant was also presented with a list of 105 files available for download from his shared folder, and the defendant confirmed that he believed he downloaded those files from Bearshare and that the majority of the files contained child pornography. ( Id.)

The defendant was arrested on November 10, 2011, and a Superseding Indictment returned on April 12, 2012 charged him with (1) ten counts of Distribution of Child Pornography in violation of 18 U.S.C. § 2252(a)(2), presumably for the ten files downloaded by the Agent ⁴, (2) six counts of Receipt of Child Pornography in violation of 18 U.S.C. § 2252(a)(2), and (3) one count of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B). ( See ECF No. 25, Superseding Indictment.) The court will now address defendant's motion.

DISCUSSION

I. Dismissal of the Distribution

Charges⁵

Defendant argues that he cannot be charged with “distribution” of child pornography because the Agent downloaded the files at issue from the shared folder on defendant's computer without the defendant's knowledge of or active participation in the download.⁶ ( See Def. Arg. at 6–8.) In opposition, the government notes that, although the Second Circuit has not addressed the meaning of “distributes” in Section 2252(a)(2), other Circuit courts “have held that having pornographic material in a file-sharing server constitutes distribution.” (Gov't Opp'n at 4 n.1 (collecting cases).) The question before the court is thus purely a legal one: whether a defendant who places and maintains electronic files containing child pornography in a shared folder accessible to others via a P2P program on the internet can be charged with “distributing” child pornography under Section 2252(a)(2), where a third party downloads those files without the defendant's active participation or knowledge.⁷ For the reasons discussed below, the courts answers this question in the affirmative.

A. Plain Meaning of “Distributes”

“ ‘Statutory analysis necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there.’ ” Cruz–Miguel v. Holder, 650 F.3d 189, 195 (2d Cir.2011) (quoting Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir.2010)); see K Mart Corp. v. Cartier, 486 U.S. 281, 291–92, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). In conducting such an analysis, a court should “ ‘consider[ ] the ordinary or natural meaning of the words chosen by Congress, as well as the placement and purpose of those words in the statutory scheme.’ ” Cruz–Miguel, 650 F.3d at 195.Section 2252(a)(2) authorizes the punishment of:

Any person who knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce ... by any means including by computer ... if (A) the producing of such visual depiction involvesthe use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct.

18 U.S.C. § 2252(a)(2). Because the statute does not contain a definition of “distributes,” the court considers the ordinary, common meaning of “distribute,” which, inter alia, includes “[t]o apportion; to divide among several,” “[t]o deliver,” and “[t]o spread out; to disperse.” Black's Law Dictionary (9th ed.2009); United States v. Lorge, 166 F.3d 516, 518 (2d Cir.1999) (interpreting “distribution” under United States Sentencing Guidelines Manual § 2G2.2(b)(2) [now § 2G2.2(b)(3) ] and considering Webster's Third New International Dictionary (unabridged 1981) “defining ‘distribution’ as, inter alia, ‘a spreading out or scattering over an area or throughout a space’ ”); see also Chiaradio, 684 F.3d at 281–82 (“The word ‘distribution’ is not defined in [Section 2252(a)(2) ] itself, but the plain meaning of distribution is ‘[t]he act or process of apportioning or giving out.’ ” (citing Black's Law Dictionary 543 (9th ed.2009))); 3 L. Sand et al., Modern Federal Jury Instructions–Criminal, ¶ 62.02, Instr. 62–15 (stating that “distribute” under Section 2252(a)(2) “means to disseminate or transfer possession to another person.”); cf.21 U.S.C. § 802(11) (stating that “ ‘distribute’ means to deliver” for purposes of drug offenses).

Considering the plain meaning of “distribute,” the court finds that defendant's placing of child pornography files in a shared folder accessible to others via a P2P program on the internet constitutes “distribution” under Section 2252(a)(2) to persons to share and download. By placing the child pornography files in his shared folder, the defendant distributed those files to any person using the same P2P program, thereby “spreading,” “scattering,” “disseminating,” “delivering,” or “transferring possession” of those files to any individual, including the Agent, that downloaded those files. The fact that the defendant did not transfer the files to a specific person or that the Agent had to download the files from the defendant's shared folder before possessing or viewing them does not change the nature of defendant's placing of the files into the shared folder from one of distribution to something else.

Moreover, the fact that the Agent could download the files without the defendant's knowledge or active participation is irrelevant because, by actively placing the child pornography files into his shared folder, the defendant deliberately distributed to all users of the P2P program access to those files and forfeited control over who could download them. Indeed, the use of a shared folder on a P2P program is more effective at “distributing” child pornography files than more traditional electronic methods such as email, chat rooms, or a direct private transfer—which require the distributor to actively initiate and monitor the transfer of files-because the same files can be distributed to multiple individuals using the P2P program by the click of a button and without the distributor's participation. See United States v. Sewell, 513 F.3d 820, 822 (8th Cir.2008) (distinguishing between distribution of child pornography in a chat room and on a P2P program).

B. Other Circuit Court Interpretations of “Distribute”

As defendant concedes, although the Second Circuit has not addressed this issue, other Circuit courts, including the First, Eight, Tenth, and Eleventh Circuits, that have addressed distribution under Section 2252(a)(2) have adopted the view that placing child...