United States v. Vadnais

• Decision Date: 13 January 2012
• Docket Number: No. 10–14382.,10–14382.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Marc Dennis VADNAIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 695

667 F.3d 1206

UNITED STATES of America, Plaintiff–Appellee,

v.Marc Dennis VADNAIS, Defendant–Appellant.

No. 10–14382.

United States Court of Appeals, Eleventh Circuit.

Jan. 13, 2012.

Suzan H. Ponzoli, Anne R. Schultz, Kathleen Mary Salyer, Wilfredo A. Ferrer, U.S. Attys., Miami, FL, Carmen M. Lineberger, U.S. Atty., Fort Pierce, FL, for Plaintiff–Appellee.

David Lee Brannon, Fed. Pub. Def., Fed. Pub. Defender's Office, West Palm Beach, FL, Michael Caruso, Fed. Pub. Def., Fed. Pub. Defender's Office, Miami, FL, Timothy Cone, Fed. Pub. Def., Fed. Pub. Defender's Office, Fort Lauderdale, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida.Before EDMONDSON and BARKETT, Circuit Judges, and FULLER,^* District Judge.BARKETT, Circuit Judge:

Marc Dennis Vadnais appeals his 240–month sentence imposed after pleading guilty to knowingly receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2). He argues that the district court erred by applying a five-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(3)(B), which provides for the enhancement if the offense involves distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value.” ¹ Vadnais obtained child pornography through the installation and use of the peer-to-peer file-sharing software LimeWire. He argues that simply using LimeWire does not support a finding that the distribution of his child pornography files was done for the purpose of expecting to receive a thing of value in return.

I. Background

For purposes of sentencing, Vadnais admitted that he installed LimeWire's peer-to-peer file-sharing software and used it to download the child pornography files of other LimeWire users to his computer. Once installed, LimeWire's default file-sharing setting automatically placed the downloaded files in a shared folder on his computer, making them available to other LimeWire users. It was through this feature of LimeWire that the government investigator accessed Vadnais's pornography files.

The sentencing guidelines applicable to Vadnais's offense for receipt of child pornography provides for a two-level enhancement when the offense involves distribution. U.S.S.G. § 2G2.2(b)(3)(F). Specifically, distribution is defined by the guidelines as “any act ... related to the transfer of material involving the sexual exploitation of a minor.” § 2G2.2, comment. (n.1).

However, the sentencing guidelines provide for greater enhancements when the distribution involves additional specified circumstances. See U.S.S.G. § 2G2.2(b)(3)(A)-(E). A five-level enhancement may be imposed when the distribution is “for the receipt, or expectation of receipt, of a thing of value.” § 2G2.2(b)(3)(B). This enhancement is defined as “any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” § 2G2.2, comment. (n.1). Moreover, a “thing of value” can include the “child pornographic material received in exchange for other child pornographic material bartered in consideration for the material received.” Id. See also United States v. Bender, 290 F.3d 1279, 1286 (11th Cir.2002) (holding that “when a defendant trades child pornography in exchange for other child pornography, the defendant has engaged in distribution for the receipt, or expectation of receipt, of a thing of value,” necessary to impose the five-level enhancement) (internal quotation marks omitted).

At sentencing, Vadnais did not dispute that he was subject to a two-level enhancement for distribution of child pornography as a result of the shared folder on his computer, but argued that these facts did not support the five-level enhancement for distribution for receipt, or expectation of receipt, of a thing of value. Accordingly, the issue before us is whether Vadnais's use of peer-to-peer file-sharing software to obtain child pornography files from other users in a manner that permitted other users to obtain child pornography files from his shared folder supports the application of the five-level enhancement of § 2G2.2(b)(3)(B).

II. Discussion

As the Supreme Court has recognized, peer-to-peer networks are “so called because users' computers communicate directly with each other, not through central servers.” Metro–Goldwyn–Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919–920, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005). The software permits users to search for files located in the shared folder that is created by the software on the computers of other users, and when found, the requesting user can download the file directly from the computer located. Id. at 921, 125 S.Ct. 2764. “The copied file is placed in a designated sharing folder on the requesting user's computer, where it is available for other users to download in turn, along with any other file in that folder.” Id. In particular, LimeWire has been described to function as follows:

LimeWire is a file-sharing program that utilizes “peer-to-peer” (“P2P”) technology. By employing P2P technology, LimeWire permits its users to share digital files via an Internet-based network known as the “Gnutella network.” LimeWire users can share almost all files stored on their computers with other LimeWire users. When a LimeWire user wishes to locate digital files available through the network, she enters search criteria into the search function on LimeWire's user interface. LimeWire then scans the computers of other LimeWire users, to locate files that match the search criteria. The LimeWire user can download any files that LimeWire locates. When the user downloads a file, LimeWire transfers a digital copy of the file from the computer on which it is located to the LimeWire user's computer.

Arista Records LLC v. Lime Group LLC, 784 F.Supp.2d 398, 410–11 (S.D.N.Y.2011) (footnote omitted).² In addition, the district court in Arista Records noted that LimeWire encourages its users to share files and its “default settings make all files that a user downloads through LimeWire available to other LimeWire users for download.” Id. at 410 n. 6. However, a user may change the default settings. “[A] user could turn off sharing altogether, designate another folder with a different name to serve as the “Shared” folder, manually remove files from the “Shared” folder (or whatever folder had been designated) and prevent them from being shared on an individual basis.” United States v. Lewis, 554 F.3d 208, 211 (1st Cir.2009).

Vadnais does not dispute that his use of LimeWire involved distribution sufficient for the two-level enhancement under § 2G2.2(b)(3)(F) as defined to be “any act ... related to the transfer of material involving the sexual exploitation of a minor.” § 2G2.2, comment. (n.1). This enhancement is based on Vadnais's downloading of child pornography files from other LimeWire users which were automatically placed in his shared folder based on the default file-sharing setting, and therefore, were retrievable by other LimeWire users.

However, logic compels the conclusion that more must be required for the five-level enhancement. There must be some other evidence, whether direct or circumstantial, that a defendant reasonably believed that he would receive something of value by making his child pornography files available for distribution through a peer-to-peer network. Such evidence must show the connection between the defendant's distribution and the receipt or expectation of receipt of a thing of value. As other courts have found, simply using a peer-to-peer program is not itself sufficient to trigger the five-level enhancement. See United States v. Durham, 618 F.3d 921, 931 (8th Cir.2010) (“[W]e have explicitly rejected any suggestion we automatically apply a [§ 2G2.2(b)(3)(B) ] enhancement based merely on a defendant's use of a file-sharing program.”); United States v. Geiner, 498 F.3d 1104, 1111 (10th Cir.2007) (concluding that the enhancement does not automatically apply to a defendant who downloads and...