A common issue for appeal in child pornography sentencing cases is whether the "thing of value" requirement under U.S.S.G. § 2G2.2(b)(3)(B) can be satisfied by showing simply that the defendant (1) had images of child pornography and (2) used file-sharing software. The five-level enhancement is applicable if the defendant distributed child pornography, but some courts hold that proof of distribution is not necessary as long as those two elements are met. (Read a prior post here concerning this dispute in the 8th and 11th Circuits.)
Eighth Circuit precedent does not require proof, and a recently decided case from that circuit followed that concept. United States v. Burman, 666 F.3d 1113 (8th Cir. 2012). What was interesting, however, was the concurring opinion. The majority had suggested that "[h]e who places an open box of treats in a common area of an office may be distributing treats," but as the concurring judge noted, the enhancement "applies only where the defendant is engaged in a 'transaction' that is conducted 'for a thing of value.'"
The concurring judge also cites a prior Eighth Circuit concurring opinion (his own) in which he wrote, "But simply showing that a defendant made images available to others through a file-sharing software program and downloaded images from others through the same program, with knowledge that the software allowed such distribution and receipt, is a tenuous basis on which to urge the application of § 2G2.2(b)(3)." United States v. Bastian, 603 F.3d 460 (8th Cir. 2010).
You only mention the 8th and 11th circuits in these posts. Are there others that have considered it?
ReplyDeleteThose courts only addressed each other. After a quick search, here's what I found:
Delete- United States v. Geiner, 498 F.3d 1104 (10th Cir. 2007) (by sharing files, defendant expected thing of value such as faster download speed)
- United States v. Corbett, 2011 U.S. App. LEXIS 23845 (3rd Cir. 2011) (defendant's argument that he monitored the program was struck down; his placement of the files in the shared folder was sufficient)
- United States v. Hardin, 437 Fed. Appx. 469 (6th Cir. 2011) (defendant expected to receive other images)
- United States v. Moore, 328 Fed. Appx. 308 (5th Cir. 2009) (use of program allowed defendant to access more images)
Thus, it seems like the Eleventh Circuit is alone in its holding.