United States v. David Roetcisoender
2015 U.S. App. LEXIS 11499
| 5th Cir. | 2015Background
- Police used file-sharing monitoring software to identify an IP address; officers executed a search warrant at the residence where Roetcisoender lived. He admitted to having child pornography on his computers and officers seized two computers, multiple external hard drives, and flash drives.
- Forensic analysis found over 100,000 images and over 2,000 videos of child pornography across devices.
- Roetcisoender used the eMule peer-to-peer program for about nine months; downloaded files went by default into an "Incoming" folder that is, by default, shared with other eMule users.
- Forensic logs showed two child-pornography files were uploaded from Roetcisoender’s "Incoming" folder to other users; the "Incoming" folder contained a user-created subfolder labeled "Young nudists."
- At interview Roetcisoender said files "stay in the e[M]ule option unless you take it out of there," moved files between drives, centralized his collection, and acknowledged deleted files persisted.
- Jury convicted Roetcisoender of two counts of distribution (18 U.S.C. § 2252A(a)(2)(B)) and one count of possession (18 U.S.C. § 2252A(a)(5)(B)); sentence: 163 months, 8 years supervised release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence of "distribution" under § 2252A(a)(2)(B) | Government: shared-folder storage and uploads support distribution beyond reasonable doubt | Roetcisoender: he did not know the "Incoming" folder was accessible to others, so lacked requisite knowledge to distribute | Affirmed — jury could infer he knew how eMule worked and that files in "Incoming" were shareable |
| Application of § 2G2.2(b)(6) two-level computer-use enhancement | Government: enhancement proper for computer-facilitated possession/distribution | Roetcisoender: enhancement impermissibly double-counts because computer use is charged/element of offense | Affirmed — precedent allows enhancement; statutory text lists computer use as one example |
| Application of § 2G2.2(b)(3)(F) two-level distribution enhancement | Government: enhancement applies for distribution not otherwise described in subsections | Roetcisoender: district court erred because he lacked scienter for distribution | Affirmed — circuit precedent holds this guideline subsection lacks a scienter requirement |
| Preservation/plain-error of sentencing arguments | Government: some arguments raised for first time on appeal; review may be plain error | Roetcisoender: contends error regardless of preservation | No reversible error — arguments foreclosed by controlling circuit precedent |
Key Cases Cited
- United States v. Richardson, 713 F.3d 232 (5th Cir.) (storing files in a shared folder on a file‑sharing program can constitute distribution)
- United States v. Chiaradio, 684 F.3d 265 (1st Cir.) (making files available and their being taken constitutes distribution)
- United States v. Baker, 742 F.3d 618 (5th Cir.) (U.S.S.G. § 2G2.2(b)(3)(F) does not contain a scienter requirement)
- United States v. Beacham, 774 F.3d 267 (5th Cir.) (standard for sufficiency review; deferential to the jury)
- United States v. Miles, 360 F.3d 472 (5th Cir.) (jury-verdict affirmation standard)