United States v. David Husmann
2014 U.S. App. LEXIS 17003
| 3rd Cir. | 2014Background
- While on supervised release, Husmann was found viewing child pornography; agents seized flash drives and computers and discovered peer-to-peer programs (LimeWire, 360 Share Pro) and thousands of images, including ~65 images and a one‑hour video identified as child pornography.
- 360 Share Pro’s logs showed Husmann had placed child‑pornography files into a shared folder accessible on the file‑sharing network, but agents could not verify when the files were added or whether any third party ever downloaded them.
- A federal grand jury indicted Husmann on seven counts; the government dismissed three receipt counts before trial. The jury convicted Husmann of three counts of distribution (18 U.S.C. § 2252(a)(2)) and one count of possession (18 U.S.C. § 2252(a)(4)(B)).
- At sentencing the court applied enhancements under U.S.S.G. § 2G2.2 and sentenced Husmann to concurrent 240‑month terms; he appealed challenging the sufficiency of evidence for distribution and sentencing rulings.
- The Third Circuit framed the central legal question as whether placing child‑pornography files in a P2P shared folder, without proof of an actual download or transfer to another person, satisfies “distribute” under § 2252(a)(2).
Issues
| Issue | Government's Argument | Husmann's Argument | Held |
|---|---|---|---|
| Whether placing child‑pornography files into a P2P shared folder constitutes “distribution” under 18 U.S.C. § 2252(a)(2) | “Distribute” should cover making files available on a file‑sharing service (i.e., making them accessible to other users) | Mere placement in a shared folder, without evidence anyone downloaded or obtained the files, is not distribution | “Distribute” requires transfer/download to another person; conviction vacated for insufficiency of proof of actual download |
| Whether the District Court’s denial of a Rule 29 motion was reviewable as plain error and, if so, whether relief was warranted | The error (if any) was not plain under current law; alternate view that evidence could support a jury inference of download | Error was plain because statutory meaning and precedent require a download; lack of download evidence affected substantial rights | Third Circuit applied plain‑error review, found error was clear under current law and affected Husmann’s substantial rights, and vacated distribution convictions |
Key Cases Cited
- Metro‑Goldwyn‑Mayer Studios Inc. v. Grokster, 545 U.S. 913 (2005) (describing peer‑to‑peer networks and direct computer‑to‑computer file exchanges)
- United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012) (distribution requires files be maintained in a shared folder, knowledge others can download, and evidence someone actually downloaded them)
- United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012) (distribution occurs when files made available are in fact taken/downloaded)
- United States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007) (defendant distributed where agents could access and download files from defendant’s collection)
- United States v. Richardson, 713 F.3d 232 (5th Cir. 2013) (upholding distribution conviction where law‑enforcement agent successfully downloaded child‑pornography from defendant’s shared folder)