Eleventh Circuit Rules Use of File Sharing Software Does Not Qualify Alone for Sentence Enhancement – U.S. v. Vadnais

January 16, 2012 by David S. Seltzer

An important part of my job as a cyber crime criminal defense lawyer is protecting my clients from the consequences when the law hasn’t caught up with the way technology is used in real life. When laws are applied to situations they don’t quite fit, the defendants can face far more severe penalties than the situation warrants. For example, in United States v. Vadnais, defendant Marc Dennis Vadnais pleaded guilty to knowingly receiving child pornography. The problem was with the sentencing: the south Florida district court enhanced his sentence considerably, finding that because he used file-sharing software, his offense included distribution of child pornography for receipt, or expectation of receipt, of a thing of value.” His final sentence was 20 years in prison. On appeal, the Eleventh U.S. Circuit Court of Appeals held that mere use of file-sharing software did not justify the sentence enhancement.

Vadnais admitted at sentencing that he installed LimeWire, a file-sharing program, and used it to download child pornography. By default, the program was set to share everything he left in the downloads folder, and that’s how law enforcement found him. This made Vadnais eligible for a two-level sentence enhancement for distributing the material. He did not deny that he qualified for that sentence enhancement — but at sentencing, he argued that he did not qualify for the greater five-level sentence enhancement for distribution “for the receipt, or expectation of receipt, of a thing of value.” Caselaw has established that a thing of value can be other child pornography, and that was the allegation in the case of Vadnais. After receiving his sentence, he appealed.

The Eleventh Circuit sided with Vadnais, finding that “logic compels” a higher standard for finding distribution for value than that applied by the district court. In order to apply this enhancement, the court said, there must be direct or circumstantial evidence that the defendant reasonably believed he or she would receive something of value in exchange for sharing the files. The prosecution and the trial court did not deny this, the appeals court noted, but found evidence that Vadnais expected to receive additional child pornography because he did not turn off the file-sharing feature of the software. The Eleventh flatly rejected that argument, finding it didn’t follow from the evidence in the case or the structure of file-sharing software. Peer-to-peer file-sharing programs do not penalize users for failing to share; Vadnais would have had the same access to other people’s files regardless of whether he changed the default settings for his own. The Eleventh noted that facts may show this in other cases, but sent this case back for resentencing.

As a child pornography criminal defense attorney, I am pleased to see the Eleventh Circuit, which includes Florida, join at least two other circuits in requiring real evidence for this sentence enhancement. As the court noted, any user who shares files in a peer-to-peer program is already vulnerable to the same two-level sentence enhancement Vadnais did not dispute in this case, for mere distribution. If the Eleventh had applied the standard prosecutors requested in this case — whether the defendant turned off the default-enabled file-sharing — anyone who qualified for the lower sentence enhancement would also qualify for the higher one. This would make the distinction meaningless. As a child pornography possession defense lawyer, I do not believe that’s what the writers of the sentencing guidelines intended.

Seltzer Law, P.A., represents defendants across the United States who are fighting serious child pornography or other cyber crime charges. To learn more or for a free consultation, call us anytime at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

Similar blog posts:

Sixth Circuit Dissent Takes on ‘Unconscionably Harsh’ Sentencing for Child Pornography Cases – U.S. v. Overmyer

Eighth Circuit Rules Child Porn Defendant Waived Double Jeopardy Claim When He Pleaded Guilty – U.S. v. Dolehide

Fourth Circuit Rules Sentence Enhancement Proper for Child Porn Defendant With Prior Battery – U.S. v. Spence