Tenth Circuit Rules Distribution Charge Applies for Use of File-Sharing Software – U.S. v. Ray

November 13, 2012 by David S. Seltzer

Though the underground world of online child pornography includes websites with elaborate security measures, it also includes people who swap the materials using peer-to-peer file-sharing software, the same software used to swap music and movie files. Law enforcement frequently finds people through these peer-to-peer networks, and the resulting charges often include distribution as well as possession of child pornography, because the file-sharing software typically defaults to sharing whatever was downloaded. That fact has resulted in harsher charges for many child porn defendants than they originally expected. One such recent case is U.S. v. Ray, in which the Tenth U.S. Circuit Court of Appeals upheld the sentence of Austin Alan Ray. Ray argued in vain that it wasn’t proven that he understood that he was sharing files.

Ray, of Kansas, was searched after an acquaintance told authorities he suspected Ray of molesting a child; police also suspected Ray was sending the acquaintance child pornography. Immigration and Customs Enforcement officers searched Ray’s home and found child pornography on two computers there. One had file-sharing software on it with sharing enabled. Though Ray was cleared of the original suspicions, he ended up charged with distribution and receipt of child pornography, and pleaded guilty only to receipt. Before sentencing, however, he objected to a sentence enhancement for distribution of the material, arguing there was no evidence offered that he had distributed the material or that anyone had actually downloaded it from his shared folder. The district court used the sentence enhancement, finding that the use of the file-sharing software was legally sufficient to trigger it.

After receiving a 104-month sentence, Ray appealed, arguing among other things that the enhancement was wrongly applied. The Tenth U.S. Circuit Court of Appeals rejected these arguments. Unfortunately for Ray, the Tenth Circuit had just decided in August, in U.S. v. Ramos, that the law does not require the government to prove an actual transfer of the material or even that the defendant intended to transfer it. The court distinguished that case slightly by noting that Ramos was an expert computer user, whereas Ray was not, and may not have understood what he was sharing. However, it went on to hold that the sentencing guidelines do not require defendants to know their programs are capable of distributing child pornography. The text does not impose a state of mind requirement, the court said, and sentencing guidelines don’t carry the same implied requirements as criminal laws. Thus, Ray’s argument failed and the Tenth upheld his sentence.

This is a disappointing ruling for criminal defense attorneys like me. Under the law, all defendants are legally presumed innocent until proven guilty—even defendants accused of serious cyber crimes like this one. That principle may not apply to sentencing guidelines, but its spirit should apply throughout the criminal defense world. In essence, the court here said prosecutors are not required to show that the defendant actually either distributed child pornography or had the intent to distribute child pornography; even being ignorant of the way file-sharing software works does not help the defendant. I do not believe it is too much to ask prosecutors to prove their cases, so this is a disappointing ruling—but because child pornography crimes are so emotional, it may be repeated in other courts.

If you’re charged with a crime involving the Internet, computers or other technology, you need a defense attorney experienced in how technology intersects with the law. David Seltzer is a former cyber crime prosecutor for the Miami-Dade State’s Attorney’s office and an experienced criminal defense attorney specializing in cyber crimes defense. To learn more at a free, confidential consultation, send us an email or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

Ninth Circuit Remands Child Pornography Distribution Case for Discovery Problems – U.S. v. Budziak

Seventh Circuit Finds No Double Jeopardy for Defendant Accused of CP Possession and Receipt – U.S. v. Halliday

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