2018 COA 28
Colo. Ct. App.2018Background
- Detectives found over 600 sexually exploitative image/video files on defendant Fernando Robles‑Sierra’s computers, external hard drive, and thumb drive.
- Defendant used ARES peer‑to‑peer (P2P) software to download files and left them in share‑capable folders, enabling other users to download hundreds of his files.
- Charged with four counts under Colorado’s child sexual exploitation statute: two counts under § 18‑6‑403(3)(b) (including prepares, publishes, offers, distributes, etc.) and two counts under § 18‑6‑403(3)(b.5) (possession/control).
- Defendant admitted downloading and viewing the material but argued he did not "knowingly" publish/distribute because he lacked understanding of how ARES operated.
- At trial, prosecution displayed images/videos on a screen visible to jurors and witnesses but not to gallery members; experts testified about how ARES works and used terms like “distribute.” Jury convicted on all counts; defendant appealed.
Issues
| Issue | People’s Argument | Robles‑Sierra’s Argument | Held |
|---|---|---|---|
| Whether excluding gallery members from visual access to exhibit videos (screen visible to jurors only) closed the courtroom | No closure: public access to proceedings remained open; showing exhibits to jurors on a screen that gallery could not view is not exclusion | The gallery was effectively excluded from viewing evidence, so the courtroom was "closed" without Waller analysis | No closure occurred; public trial right not implicated because no one was excluded from courtroom attendance |
| Whether expert testimony (stating files were "distributed" or met elements) usurped jury fact‑finding | Testimony described investigatory methods and how ARES works; jurors instructed and could reject experts | Experts impermissibly opined on ultimate issues, warranting reversal | Even if some testimony bordered on improper, no plain error: not obviously erroneous and evidence of distribution/possession was overwhelming |
| Whether downloading to a share‑capable folder via P2P "publishes" under § 18‑6‑403(3)(b) | Such conduct places material before the public and fits the broad statutory purpose to remove exploitative material from channels of trade | Mere downloading does not equal publication absent active dissemination | "Publishes" includes making material available via share‑capable P2P folders; theory legally sufficient |
| Whether downloading to share‑capable P2P folder "distributes" under § 18‑6‑403(3)(b) | Passive availability via P2P is distribution (analogy: self‑serve gas station) and other courts so hold | Distribution requires an active transfer of possession to another | "Distributes" encompasses leaving sexually exploitative files in shareable P2P folders; theory legally sufficient |
Key Cases Cited
- Waller v. Georgia, 467 U.S. 39 (U.S. 1984) (sets factors for permissible courtroom closures)
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (U.S. 1980) (historical foundation for public‑trial right and focus on public access)
- United States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007) (P2P file availability can constitute distribution; self‑serve analogy)
- United States v. Carani, 492 F.3d 867 (7th Cir. 2007) (downloading to shared folder can be distribution under federal law)
- United States v. Griffin, 482 F.3d 1008 (8th Cir. 2007) (similar holding on distribution via P2P availability)