United States v. Dunn
| Decision Date | 10 February 2015 |
| Docket Number | No. 13–4140.,13–4140. |
| Citation | 777 F.3d 1171 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Michael Loren DUNN, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Scott Wilson, Assistant Federal Public Defender (and Kathryn N. Nester, Federal Public Defender, on the briefs), Salt Lake City, UT, for Defendant–Appellant.
Sonja Ralston, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, (Carlie Christensen, Acting United States Attorney, Diana Hagen, Assistant United States Attorney, Appellate Chief, District of Utah, Leslie R. Caldwell, Assistant Attorney General, David A. O'Neil, Acting Deputy Assistant Attorney General, on the brief), Washington, D.C., for Plaintiff–Appellee.
Before KELLY, BALDOCK, and EBEL, Circuit Judges.
Defendant–Appellant Michael Loren Dunn was convicted of possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B) (Count I), receipt of child pornography, 18 U.S.C. § 2252A(a)(2) & (b) (Count II), and distribution of child pornography, 18 U.S.C. § 2252A(a)(2) & (b) (Count III). 1 R. 583–85. The district court sentenced Mr. Dunn to 144 months' imprisonment and a 25–year term of supervised release. Id. at 1042–44. The district court imposed several special conditions of supervised release, some of which restrict Mr. Dunn's ability to use and access both computers and the Internet. In addition to his sentence, Mr. Dunn was ordered to pay $583,955 in restitution to one of the victims depicted in images he possessed and distributed. Id. at 1046.
On appeal, Mr. Dunn argues that: (1) an erroneous jury instruction relieved the government of its burden to prove that he “distributed” child pornography; (2) his convictions for receipt and possession of child pornography are multiplicitous and thus violate the Double Jeopardy Clause; (3) the special condition of supervised release requiring him to comply with a computer and Internet monitoring program was not supported by necessary findings of fact; and (4) the district court applied the wrong legal standard in determining the amount of restitution owed by Mr. Dunn. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
This case involves the downloading and sharing of child pornography on an Internet-based peer-to-peer network. Like many peer-to-peer file-sharing programs, LimeWire permits users to search for and download electronic files from other users who are running the program. Generally speaking, these file-sharing programs are effective only if users make their own files available for sharing with other users of the same program. For this reason, LimeWire's default setting automatically places a user's downloaded files into a shared folder; the contents of the shared folder are, by default, searchable by other users and the files contained therein may be downloaded at the other users' command. Relevant to this case, this default setting can be changed manually so that a user's downloaded files are not automatically made available to other LimeWire users.
The Utah Internet Crimes Against Children Task Force monitors peer-to-peer networks using an automated search program that identifies probable child pornography files. Law enforcement can often identify these files by their SHA–1 (secured hash algorithm) values. Similar to human DNA, SHA–1 values are unique, 32–character identifiers given to a file by a universal algorithm. Separate files with the same SHA–1 values will have identical content.
Between 2007 and 2009, the Utah Task Force observed a particular internet-protocol (IP) address offering to share files on LimeWire with SHA–1 values consistent with known child pornography files. Law enforcement agents were able to trace the IP address to Mr. Dunn. Subsequently, a warrant was obtained authorizing the search and seizure of Mr. Dunn's computers. The warrant was executed on March 26, 2009 and resulted in the seizure of four computers and one external hard drive.
A forensic analysis of the computers revealed that at least 20 child pornography images had been downloaded via LimeWire. All of the files were stored in the program's shared folder and were therefore available for download to other users. At trial, both sides presented expert witnesses. Mr. Dunn presented an expert witness to rebut the government's computer forensics expert. At the close of evidence, each side submitted proposed jury instructions. Mr. Dunn's proposed instruction on the distribution offense would have required the jury to find, as an element of the offense, that a third-party had actually received child pornography from Mr. Dunn. The district judge rejected this instruction, and instead instructed the jury that “if a person knowingly makes images available on a peer-to-peer file sharing network, such as LimeWire, this is considered ‘distribution’ of the images.” 1 R. at 850. The jury found Mr. Dunn guilty on all three counts.
Based upon a total offense level of 37 and a criminal history category of I, the Presentence Report calculated the sentencing range of imprisonment as 210–262 months. 2 R. at 72. However, despite denying Mr. Dunn's request for a downward adjustment based on acceptance of responsibility and a request for a five-year minimum sentence, the district court imposed a below-Guidelines sentence of 144 months' imprisonment. Further, the district court imposed a 25–year term of supervised release and several special conditions of supervised release. One of the special conditions requires Mr. Dunn to participate in the Computer and Internet Monitoring Program conducted by Probation and Pretrial Services. This program restricts Mr. Dunn's ability to use and access computers and the Internet, and requires Mr. Dunn to obtain pre-approval from his probation officer prior to engaging in certain computer-related activities. Mr. Dunn was previously employed as both a computer technician and computer teacher.
A restitution request was filed by a representative (Professor Paul Cassell, through the University of Utah Appellate Law Clinic) of one of the victims depicted in the child pornography images possessed and distributed by Mr. Dunn. The victim, “Vicky,” sought restitution under 18 U.S.C. § 2259 in the full amount of her unpaid aggregate losses—$583,955. Mr. Dunn requested that Vicky's representative produce an up-to-date economic report establishing the amount of Vicky's losses and a causal link between Mr. Dunn's conduct and those losses. The district court denied that request, found that Vicky was a victim of Mr. Dunn's crimes and, most importantly, “conclude[d] that all her losses were proximately caused by Dunn.” 1 R. Supp. at 32. As such, the court ordered Mr. Dunn to pay Vicky restitution in the full amount of her unpaid aggregate losses. Id. at 37.
Mr. Dunn raises four issues on appeal. First, he argues that the district court erred by instructing the jury that it could convict him on the distribution charge simply by finding that he made child pornography available for sharing on LimeWire. Second, he argues that under United States v. Benoit, 713 F.3d 1 (10th Cir.2013), his sentences for receipt and possession of child pornography are multiplicitous and violate the Double Jeopardy Clause. Third, he contends that the district court did not make the necessary findings to support the imposition of a special condition of supervised release concerning his ability to use and access computers and the Internet. Fourth, he argues that the district court applied the wrong legal standard when it determined that he owed a victim the full amount of her unpaid aggregate losses.
The government agrees that the district court erred regarding the second and fourth issues; however, it contends that the district court's findings of fact on the restitution issue should be left undisturbed. We consider each of these arguments in turn.
We first consider Mr. Dunn's challenge to the jury instructions on the distribution charge. Our review of jury instructions is de novo, United States v. Serrata, 425 F.3d 886, 898 (10th Cir.2005), and we will “reverse for instructional error only where it is prejudicial in view of the entire record.” United States v. Wittgenstein, 163 F.3d 1164, 1169 (10th Cir.1998) ; see United States v. Batton, 602 F.3d 1191, 1199 (10th Cir.2010).
Mr. Dunn contends that the jury instructions on the distribution charge amounted to a “mandatory” presumption in favor of conviction. It seems to us, however, that Mr. Dunn is actually making two arguments. First, instead of permitting the jury to infer distribution based on Mr. Dunn's act of placing files into a folder available for sharing, the jury instructions required the jury to find that this act was, under the law, distribution itself. Second, the instructions “required the jury to disregard his expert testimony and with it much of his theory of the case.” Aplt. Rep. Br. at 1. The government counters that the instruction was a correct statement of the law and any error was harmless because the jury's verdict necessarily encompassed attempted distribution.
The two instructions at issue here are Instructions 47 and 48. The former lists the essential elements of the distribution offense and instructs the jury that it must find beyond a reasonable doubt that Mr. Dunn:
Did knowingly distribute or knowingly attempt to distribute child pornography, to-wit: knowingly made available for sharing electronically image files that he knew depicted children engaged in sexually explicit conduct.
1 R. at 849. The latter provides:
[I]f a person knowingly makes images available on a peer-to-peer file sharing network, such as LimeWire, this is considered “distribution” of the images. In other words, the Government may meet its burden of proof on this element by showing that Defendant...
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