United States v. Timothy Howard Spriggs, No. 10-14919 (January 10, 2012)
This was an appeal from the United States District Court for the Southern District of Florida. The Eleventh Circuit Court of Appeals, led by Circuit Judge Wilson issued an order that Vacated and Remanded the Appellant’s (Timothy Howard Spriggs) sentence.
Appellant Timothy Spriggs pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). At sentencing, over Spriggs’s objection, the district court applied a five-level enhancement under USSG §2G2.2(b)(3)(B) for distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value.
The Eleventh Circuit vacated the sentence and remanded for resentencing because, although it found evidence that Spriggs distributed illicit images, it also found that there was insufficient evidence to support the other elements of the five-level enhancement.
Spriggs downloaded child pornography through use of a peer-to-peer file-sharing program named Shareaza 2.0. The copy of Shareaza 2.0 on Spriggs’s computer was configured to allow peers to download files from his computer. Default settings on Shareaza 2.0 automatically provide for reciprocal sharing and require additional steps if a user did not want to share files with others using the program. Most of Spriggs’s child-pornography collection was located in a shared folder that could be accessed by other Shareaza users.
The Eleventh Circuit held that this was sufficient proof of the
“distribution” prong of §2G2.2(b)(3)(B). Allowing files to be accessed on
the Internet by placing them in a file sharing folder is akin to posting material on a website for public viewing, the Court wrote, and when the user knowingly makes the files accessible to others, the distribution is complete.
Although the Court found that Spriggs distributed child pornography, it held that the evidence presented was insufficient to prove the other prong of the five-level enhancement under § 2G2.2(b)(3)(B): that the distribution be “for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.”
The commentary to the Guidelines explains that the enhancement applies when child pornography is used in “any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” A “thing of value” is defined as “any valuable consideration.”
The Court held that file-sharing programs exist to promote free access to information, and generally do not operate as a forum for bartering.
Because the transaction contemplated in the Guidelines is one that is conducted for “valuable consideration,” the Court wrote, the mere use of a program that enables free access to files does not, by itself, establish a transaction that will support the five-level enhancement.
And although the Eleventh Circuit has applied the enhancement when a defendant traded child pornography in exchange for other pornography, in Spriggs’s case the Court found no evidence that Spriggs entered into a transaction in which he shared his child pornography to gain access to another user’s pornography. The Court wrote that even if another user accessed Spriggs’s files, – and there was no evidence to establish any person did – it would not necessarily be a transaction conducted for “valuable consideration.” Without evidence, the Court held, that Spriggs and another user conditioned their decisions to share their illicit image collections on a return promise to share files, it could not conclude that there was a transaction under which Spriggs expected to receive more pornography.
The district court had also reasoned that the enhancement was appropriate because Spriggs expected to receive faster downloading capabilities when he shared files. A law enforcement agent had testified at Spriggs’s sentencing that file-sharing programs often give priority downloading capabilities to users who share files. The Eleventh Circuit found that the evidence was insufficient to support the district court’s implicit finding that Spriggs shared files in exchange for faster downloading capabilities, given that the law enforcement agent only testified about file-sharing programs generally and gave no indication whether he knew Shareaza 2.0 offered the benefit, and the government presented no additional evidence to support its position that Shareaza 2.0 gave Spriggs faster downloading capabilities when he shared files.
Because the record did not support the conclusion that Spriggs entered a transaction in which he distributed child pornography for receipt, or expectation of receipt, of a thing of value, the Court vacated the sentence and remanded for resentencing without the enhancement.