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Media Alerts - USA v. David George Husmann - Third Circuit
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September 8, 2014
  USA v. David George Husmann - Third Circuit
Headline: Third Circuit holds that the act of placing pornography onto a shared computer that is available to other users of a file-sharing network does not constitute distribution of child pornography where no proof was offered that any person had actually downloaded or obtained the materials.

Area of Law: Criminal Law

Issues Presented: Does the act of placing child pornography materials in a shared computer folder, available to other users of a file-sharing network, constitute distribution of child pornography?

Brief Summary: Defendant David George Husmann was on supervised release for a child pornography conviction when his probation officer was alerted that his computer was being used for child pornography. After an FBI search, pornographic images and a video were found and many of those illicit files had been uploaded onto file-sharing networks. The Government did not produce evidence that any person actually downloaded or viewed the files that Defendant uploaded. A jury found Defendant guilty of possession and distribution of child pornography. Defendant appealed the verdict and argued that merely placing the files onto a file-sharing network does not constitute distribution. Declining to adopt the Sentencing Guideline's definition of distribution, the Third Circuit held that the ordinary meaning of distribute should apply, which requires the actual transfer or downloading of the illicit materials to another person. The Third Circuit thus found that the District Court committed plain error in sentencing Defendant. The Court held that "[a] conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder." The Court therefore vacated Defendant's convictions for distribution of child pornography under 18 U.S.C. § 2252(a)(2) and remanded for resentencing on the remaining count of possession.

Extended Summary: While on supervised release for a child pornography conviction, the probation office received an alert that Defendant's computer had accessed pornographic websites and images. Defendant's probation officer found him at his home viewing an image of a girl between ages six and eight posed in a bathing suit. The probation officer seized four flash drives from Defendant and found pornographic images on them. The FBI then obtained a search warrant and seized computers and computer-related items from Defendant's home. Child pornography images and a movie were found on the devices as well as two file-sharing programs. Illicit files had also been uploaded onto the file-sharing sites from Defendant's computer. At trial, Defendant was found guilty of one count of possession and three counts of distribution of child pornography. Combining the verdict with his prior child pornography convictions, Defendant was sentenced to twenty years imprisonment, several months over the calculation for his recommended guideline.

On appeal, Defendant argued that placing child pornography onto a shared folder available to other users does not constitute distribution under 18 U.S.C. § 2252(a)(2). Defendant also argued that the use of his prior conviction to raise his sentence five levels and his ultimate sentence of twenty years were procedurally and substantively unreasonable.

In order to define the term "distribute," the Court looked to dictionaries, statutory context, and case law. The Third Circuit declined to adopt the definition of "distribution" set forth in the Sentencing Guidelines and held that the ordinary meaning of distribute requires that the child pornography actually be transferred or downloaded by another person. Because the Government did not produce any evidence showing that another person downloaded Defendant's shared files, the Court found that this element of the statute was not met. The Third Circuit, thus, vacated Defendant's convictions for distribution of child pornography and remanded the case for resentencing on Defendant's remaining count of possession of child pornography.

To read the full opinion, please visit

Panel (if known): Fuentes, Greenberg, and Van Antwerpen, Circuit Judges

Argument Date: March 24, 2014

Date of Issued Opinion: September 3, 2014

Docket Number: No. 12-0141

Decided: Vacated and reversed

Case Alert Author: Antoinette Snodgrass

Counsel: Zane David Memeger, Esq., Robert A. Zauzmer, Esq., and Michelle Rotella, Esq. for Appellee, United States of America; Theodore C. Forrence, Jr., Esq. and Kenneth C. Edelin, Jr., Esq. for Appellant David George Defendant

Author of Opinion: Judge Fuentes

Circuit: Third Circuit

Case Alert Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 09/08/2014 12:53 PM     3rd Circuit  

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