LimeWire is a file-sharing program that uses “peer-to-peer” (P2P) technology. LimeWire allows its users to share digital files through an Internet-based network called the “Gnutella network.” A LimeWire user can download any files located by LimeWire. When a user downloads a file, a copy of it is designated as a sharing folder on the requesting user’s computer. LimeWire encourages its users to share files. Its default settings make any file downloaded by a user accessible for download by any other LimeWire user. However, these default settings can be changed, preventing all or designated files from being shared. Such changes do not mean that a user who does not share can no longer download because LimeWire permits free downloading.
P2P File Sharing
LimeWire has been used extensively to illegally download and trade child pornography. The FBI, and other law enforcement agencies, has become increasingly aware of this fact. These agencies have developed a sensitive software called ShareazaLE to identify and track individuals using LimeWire or other P2Ps to share child pornography. It also allows the FBI to download illicit videos and images from “shared” file folders on a computer suspected of using LimeWire to engage in the traffic of child pornography.
That’s what happened when the FBI downloaded a shared file folder from the computer of Jason Daniel Scott. Agents discovered three videos of child pornography which were determined by forensic examination to have been downloaded from the Internet.
Distinction Between Possession and Distribution
In an April 19, 2016 opinion, the Fifth Circuit Court of Appeals pointed out that while Scott admitted to FBI agents that he used search terms consistent with “child pornography videos/images” on LimeWire, he did not offer any indication, nor did the FBI produce any evidence, that he knew “he was making child pornography available to others or was aware of LimeWire’s default file-sharing setting.”
That’s significant because Scott was indicted under federal child pornography statutes on one count of possessing child pornography and three counts of receiving child pornography. He pled guilty to one count of possession of child pornography and received a 108-month sentence followed by a lifetime term of supervised release with four special conditions:
- Absolute ban on having “access to any computer that is capable of internet access;”
- Absolute ban on having “unsupervised contact with anyone under the age of 18;”
- Requirement that he register as a sex offender; and
- Requirement that he “consent to installation of software on any computer to which [he] has access.”
Sentencing Enhancement for Trafficking in Child Pornography
Scott’s Presentencing Report (PSR) stated that he had used LimeWire to traffic in child pornography. The PSR recommended a five-level enhancement under U.S. Sentencing Guideline § 2G2.2(b)(3)(B) for “distribution [of child pornography] for the receipt, or expectation of a thing of value, but not for pecuniary gain.”
Scott objected to this enhancement. He told the sentencing court that a two-level enhancement under § 2G2.2(b)(3)(F) for “distribution other than distribution described in subdivisions (A) through (E)” applied instead.
The PSR disagreed with this position, telling the court that Scott “had the file sharing function of [LimeWire] turned on … allowing him to not only receive … but to ‘distribute’ child pornography.” The PSR added that § 2G2.2(b)(3)(B) applies when a defendant trades in child pornography in exchange for child pornography.
No Evidence of Intent to Knowingly Exchange Child Porn
Scott rebutted this position, arguing to the court that he had been convicted of possession, not distribution, of child pornography; that the Government had not presented any “evidence that he knew he was making child pornography available to others or that he was a sophisticated computer user who might be presumed cognizant of the sharing.”
The sentencing court sided with the PSR, finding that “Scott, by using LimeWire and other peer-to-peer file sharing programs, agreed to share the child pornography he gathered.”
That was the issue that garnered the attention of the Fifth Circuit. The appeals court said that it is “undisputed” that “distribution” as defined in § 2G2.2 includes “operating a file sharing program that enables other participating users to access and download files [then automatically] placed in a shared folder available to other users.”
Guideline § 2G2.2(b)(3)(B); Receipt, or Expectation of a Thing of Value
But the issue in Scott’s case was whether he distributed child pornography “for the receipt, or expectation of receipt, of a thing of value” so as to warrant a five-level enhancement.
The Fifth Circuit pointed out that a sentencing court must make a “requisite finding” that a defendant used LimeWire to “download and distribute child pornography” within the meaning of § 2G2.2(b)(3)(B). The sentencing court is Scott’s case, as the appeals court observed, simply concluded that Scott “by using LimeWire and other peer-to-peer file sharing programs, agreed to share the child pornography he gathered.”
In short, the sentencing court did not make an “express finding” that Scott “knowingly used LimeWire to exchange child pornography” sufficient to create an “agreement” to distribute child pornography stored on his computer in exchange for “additional child pornography.”
Because of this the Fifth Circuit remanded Scott’s case back to the sentencing court with instructions that the court determine “whether the Government has met its burden of proving by a preponderance of the evidence that Scott knowingly used LimeWire in ‘the kind of exchange contemplated by § 2G2.2(b)(3)(B).’”
Court Vacated Two Conditions of Supervised Release
The Fifth Circuit, as a collateral matter under the “plain error” review, also vacated two of the special conditions the sentencing court imposed on Scott: the lifetime ban on having access to a computer with internet capability and the ban on having unsupervised contact with anyone under the age of 18.
Lifetime Ban on Internet Access Illegal
The appeals court pointed out that no federal circuit court has ever upheld an “absolute lifetime ban” on using a computer with internet access. The court added that it could not conceive that such a ban would ever be legal under the federal sentencing scheme.
Scott is a well-reasoned, and badly needed, sentencing opinion.
First, the Fifth Circuit made clear that it cannot be assumed that because a defendant uses P2P programs, he is “knowingly” using them to exchange child pornography. The Government must prove this by a “preponderance of the evidence” trading occurred.
Second, a lifetime ban on using a computer with internet access by someone convicted of a child pornography-related offense offends 18 U.S.C. § 3583(d)’s requirement that a supervised release condition be tailored to avoid a “greater deprivation than reasonably necessary.” The Fifth Circuit explained: “… computer bans must ‘be narrowly tailored by scope or duration’ because, among other reasons, ‘the ubiquity and importance of the Internet to the modern world makes an unconditional, lifetime ban unreasonable.’”
Sentencing in Child Porn Cases Are Unforgiving
Federal judges sometime get crazy when it comes to sentencing in child pornography cases. This was evidenced in Scott’s case.
Scott originally pleaded guilty to one count of possessing child pornography and received a 235-month sentence and a ten-year term of supervised release with no special conditions. That conviction and sentence were vacated after Scott filed a 28 U.S.C. § 2255 motion charging that he pled guilty only after his attorney informed him that the judge had told a mutual friend of Scott’s attorney that he would “take it easy on him” by sentencing him to only five years if Scott pled guilty.
Against this backdrop, Scott entered into a new plea agreement with the Government. This time around the judge reduced the original incarceration sentence from 235 months to 108 months but increased the supervised release term from ten years to a lifetime term with patently unreasonable special conditions. Those special conditions, we believe, were the byproduct of vindictiveness by the sentencing judge who was forced under odd circumstances, to say the least, to vacate his original sentence.
As we said, because of the graphic and inflammatory nature of images of child abuse, federal sentencing in child porn cases sometimes gets truly crazy.