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Media Alerts - United States v. Baker - Fifth Circuit
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February 13, 2014
  United States v. Baker - Fifth Circuit
Headline: Fifth Circuit Rules that Sentence Enhancement for Distributing Child Pornography Does Not Require Knowledge of a File-Sharing Program's Capabilities.

Area of Law: Sentencing.

Issue Presented: Whether the two-level sentencing enhancement under U.S. Sentencing Guidelines § 2G2.2(b)(3)(F) for distributing child pornography contains a scienter requirement.

Brief Summary: Baker pleaded guilty to receiving material involving the sexual exploitation of a minor. At sentencing, the U.S. District Court for the Northern District of Texas imposed a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distribution of child pornography through Baker's use of a file-sharing program. Baker unsuccessfully objected to the two-level increase, arguing that he did not know how the file-sharing program worked. Baker asserted that he was unaware that others could download from his computer, and therefore he could not have knowingly distributed pornography, which he argued was required for the § 2G2.2(b)(3)(F) enhancement. Baker appealed to the U.S. Court of Appeals for the Fifth Circuit, which held that § 2G2.2(b)(3)(F) does not contain a scienter requirement and affirmed the district court's imposition of the two-level enhancement.

Significance: There is a split between circuits over whether § 2G2.2(b)(3)(F) contains a scienter requirement.

Extended Summary: Baker pleaded guilty to receiving material involving the sexual exploitation of a minor. At sentencing, the U.S. District Court for the Northern District of Texas imposed a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distribution of child pornography through Baker's use of the file-sharing program Frostwire. Baker unsuccessfully objected to the two-level increase, arguing that he did not know how the file-sharing program worked. Baker asserted that he was unaware that others could download from his computer, and therefore he could not have knowingly distributed pornography, which he argued was required for the § 2G2.2(b)(3)(F) enhancement. Baker appealed to the U.S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit held that, firstly, the guideline's plain language illustrates that § 2G2.2(b)(3)(F) does not contain a scienter requirement. Section 2G2.2(b)(3)(F) provides for a two-level increase "if the offense involved [] [d]istribution" of child pornography where the distribution is not to minors or for something of value. The commentary accompanying § 2G2.2(b)(3)(F), defines "distribution" as "any act . . . related to the transfer of material involving the sexual exploitation of a minor." Use of the word "any" to modify "act" signals that the phrase should be construed broadly, and does not contain an implicit mens rea. The range of examples of "distribution" provided in the commentary further establishes that "transfer" should be interpreted liberally. Moreover, the guideline commentary lists "posting material involving the sexual exploitation of a minor on a website for public viewing" as an example of distribution, and downloading child pornography to a publicly accessible folder through use of file-sharing software is akin to posting such material.

Secondly, the language surrounding the operative definition reinforces this plain-language reading of § 2G2.2(b)(3)(F). In the same commentary that defines "distribution" without requiring an express mens rea, the Sentencing Commission defined "distribution to a minor" as the "knowing distribution to an individual who is a minor at the time of offense." The drafters' explicit use of a scienter requirement in this instance indicates that its omission from the definition of "distribution" was not an oversight in need of judicial insertion.

Neither the general presumption against strict-liability crimes nor the rule of lenity applies here, the Fifth Circuit also ruled.

Therefore, the Fifth Circuit held that § 2G2.2(b)(3)(F) does not contain a scienter requirement, and it affirmed the district court's imposition of the two-level enhancement.

For the full opinion, please see:
https://www.ca5.uscourts.gov/o...ub/12/12-10834-CR0.pdf.

Panel: Circuit Judges Reavley, Davis, and Higginson

Argument Date: 12/03/2013

Date of Issued Opinion: 02/12/2014

Docket Number: No. 12-10834

Decided: Affirmed

Case Alert Author: Kirsty Davis

Counsel: Brian W. McKay, Assistant U.S. Attorney, for Plaintiff-Appellee; Monica F. Markley, Federal Public Defender's Office, Northern District of Texas, for Defendant-Appellant Baker.

Author of Opinion: Circuit Judge Higginson

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 02/13/2014 03:14 PM     5th Circuit  

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