United States v. Husmann

• Decision Date: 03 September 2014
• Docket Number: No. 13–2688.,13–2688.
• Citation: 765 F.3d 169
• Parties: UNITED STATES of America, v. David George HUSMANN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

765 F.3d 169

UNITED STATES of America,

v.David George HUSMANN, Appellant.

No. 13–2688.

United States Court of Appeals, Third Circuit.

Argued: March 24, 2014.

Opinion Filed: Sept. 3, 2014.

Zane David Memeger, Esq., Robert A. Zauzmer, Esq., [ARGUED], Michelle Rotella, Esq., Office of the United States Attorney, Philadelphia, PA, for Appellee, United States of America.

Theodore C. Forrence, Jr., Esq., [ARGUED], Kenneth C. Edelin, Jr., Esq., Philadelphia, PA, for Appellant, David George Husmann.

Before: FUENTES, GREENBERG, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

David George Husmann placed various images of child pornography in a shared computer folder connected to a file sharing network. Based on that conduct, a jury convicted him of three counts of distributing child pornography. At trial, the government did not present evidence that any person had actually downloaded or obtained the materials that Husmann made available. The issue we address is whether the mere act of placing child pornography materials in a shared computer folder, available to other users of a file sharing network, constitutes distribution of child pornography. We conclude it does not. A conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder. Accordingly, we vacate Husmann's conviction under 18 U.S.C. § 2252(a)(2) and remand for resentencing.

I.

A.

While Husmann was on supervised release for a child pornography conviction, the U.S. Probation Office received a software alert indicating that his computer had accessed pornographic websites and images. In response to the alert, U.S. Probation Officer Stephen Carmichael visited Husmann's residence. Carmichael found Husmann in the act of viewing a still image of a young girl between six and eight years old posed in a bathing suit. Carmichael thought this image originated from a flash drive in the USB port of Husmann's DVD player. Carmichael seized that drive and three other flash drives.

Carmichael found pornographic images on the flash drives and referred the case to the FBI for investigation. After obtaining a search warrant, FBI agents searched Husmann's home. They seized several computers and computer-related items. They also questioned Husmann, who admitted to downloading, saving, and viewing all of the images stored on the flash drives that Carmichael had seized over a month earlier.

FBI Agent Donald Price subsequently reviewed the evidence seized from Husmann's home. He found over 4,000 images of child erotica. Of these images, the government identified approximately 65 still images and one hour-long movie as child pornography. Price also found two file sharing programs installed on Husmann's computer, LimeWire and 360 Share Pro.

File sharing programs, also known as peer-to-peer file sharing programs, enable computer users to share and receive electronic files, including images, videos, and audio files, with a network of other users. To exchange files, users' computers communicate directly with each other, rather than through central servers. See Metro–Goldwyn–Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919–20, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005). Program users can search for files made available by other users, browse files made available by a specific user, and download files. See United States v. Chiaradio, 684 F.3d 265, 271 (1st Cir.2012) (discussing the features of file sharing programs). Program users can also make their files accessible to others by placing their files in a designated folder that is available to the network of program users. See id. Since communications take place between computers connected to the file sharing network and do not travel through a central server, see Metro–Goldwyn–Mayer Studios, 545 U.S. at 920, 125 S.Ct. 2764, placing files into a shared folder does not automatically transmit them to another computer; shared files do not leave a user's computer until another program user actually downloads them.

360 Share Pro maintains an extensive log file that details what materials a user has made available for sharing. Agent Price's review of the log file in this case revealed that child pornography files were placed in a shared folder on 360 Share Pro, allowing others access to the files on several dates. However, Price could not identify when these files were loaded to the shared folder nor could he determine if the files were “ever downloaded to another machine.” App. 202.

B.

Following the government's investigation, a federal grand jury returned a seven-count indictment. Counts One through Three alleged that Husmann knowingly distributed child pornography, in violation of 18 U.S.C. § 2252(a)(2). Counts Four through Six alleged that Husmann knowingly received child pornography, in violation of 18 U.S.C. § 2252(a)(2). Finally, Count Seven alleged that Husmann knowingly possessed child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

The case proceeded to trial. On the first day of trial, the government voluntarily dismissed Counts Four through Six, which charged Husmann with knowingly receiving child pornography. At the close of the government's case, Husmann moved to dismiss the remaining charges pursuant to Rule 29 of the Federal Rules of Criminal Procedure. He argued that the government's evidence was insufficient to establish that he was the person who uploaded the files in question, since the four other people who lived with him had easy access to the computer and flash drive at issue. The District Court denied the motion and called for the defense's case. Thereafter, the jury found Husmann guilty of three counts of distribution and one count of possession of child pornography.

Before sentencing, the Probation Department submitted a Presentence Investigation Report (“PSR”), which identified Husmann's base offense level as 22. The PSR proposed several enhancements under § 2G2.2 of the Sentencing Guidelines and calculated Husmann's Adjusted Offense Level as 37. The report stated that, based on an offense level of 37 and a criminal history category of III, Husmann's guideline sentence ranged from 262 to 327 months. The government later filed a sentencing memorandum. The government agreed with virtually all of the enhancements proposed by Probation except that it recommended a two-level, instead of four-level, enhancement for the number of child pornography images in Husmann's inventory.

The District Court subsequently conducted a sentencing hearing. The Court declined to apply a two-level enhancement under U.S.S.G. § 2G2.2(b)(6) for the use of a computer, since virtually all child pornography offenders use computers. Additionally, the District Court adopted the government's proposal to apply a two-level enhancement for the number of child pornography images in Husmann's collection. After imposing the other enhancements, Husmann's total offense level became 33, with a corresponding guideline range of 168–210 months. Ultimately, the District Court sentenced Husmann to a 240–month term of incarceration on each count, to be served concurrently. Husmann appealed. ¹

II.

This appeal turns on an issue of statutory construction, namely whether placing child pornography materials in a shared folder available to other users of a file sharing network constitutes “distribution” within the meaning of 18 U.S.C. § 2252(a)(2). Husmann argues that the District Court erred in denying his Rule 29 motion for acquittal with respect to the distribution counts because the government presented no evidence that anyone accessed, viewed, or downloaded files from his shared folder. He asserts that placing child pornography in a shared folder, without anything more, does not amount to distribution under § 2252(a)(2). The government, on the other hand, contends that “ ‘distribution’ within the meaning of the statute should be defined as encompassing the act of sharing a file on a file sharing service, by making it available to all other users.” Gov't Br. 20.

Husmann also argues that the District Court committed several errors at sentencing. He claims that the District Court erred when it identified his prior conviction for possession of child pornography as a predicate offense for a five-level sentencing enhancement. Additionally, he argues that the District Court's imposition of a 240–month term of imprisonment was procedurally and substantively unreasonable.²

A.

Turning to Husmann's statute of conviction, 18 U.S.C. § 2252(a)(2) provides that:

Any person who ... (2) 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 involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct ... shall be punished as provided in subsection (b) of this section.

Because the statute does not define the term “distribute,” “we construe it in accordance with its ordinary meaning.” See Octane Fitness, LLC v. ICON Health & Fitness, Inc., ––– U.S. ––––, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014) (quotation marks and brackets omitted). We look to dictionary definitions to determine the ordinary meaning of a word. See United States v. Geiser, 527 F.3d 288, 294 (3d Cir.2008). It is well settled, however, that a “word must not be read in isolation but instead defined by reference to its statutory context.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 234, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). After all, “[a] word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.” Dolan v. U.S....