The Eleventh Circuit has vacated and remanded a sentence that included a five-level enhancement because it found the defendant had not received "a non-pecuniary thing of value" in exchange for sharing child pornography on a peer-to-peer network. United States v. Spriggs, 666 F.3d 1284 (11th Cir. 2012).
The court first examined whether a distribution took place. The defendant was using the Shareaza P2P software to download child pornography. Law enforcement had attempted to download files from the defendant, but were unsuccessful. There was also no proof that anyone else downloaded files from him, but because they were located in the shared folder, such proof was not necessary to show distribution.
However, the court did not find that "a non-pecuniary thing of value" was received or expected. The Eighth Circuit has determined that because possessors of child pornography often swap files on P2P networks, no proof is necessary to show it actually happened in order to apply this enhancement. United States v. Stultz, 575 F.3d 834, 849 (8th Cir. 2009). Here, the Eleventh Circuit disagreed - because files on P2P are free and downloads are not "conducted for 'valuable consideration,'" a transaction over the network is insufficient.
Without evidence that Spriggs and another user conditioned their decisions to share their illicit image collections on a return promise to share files, we cannot conclude there was a transaction under which Spriggs expected to receive more pornography.The district court had also justified the enhancement because a user may receive faster download speeds when sharing files, but because there was insufficient proof, the argument was struck down.
RELATED CASE: Just days after Spriggs, the Eleventh Circuit decided an almost identical case in the same way - United States v. Vadnais, 667 F.3d 1206 (11th Cir. 2012).
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