United States v. Dunn
2015 U.S. App. LEXIS 2173
| 10th Cir. | 2015Background
- Defendant Michael Dunn was convicted of possession, receipt, and distribution of child pornography based on files shared via LimeWire; he was sentenced to 144 months’ imprisonment, 25 years supervised release, and ordered to pay $583,955 restitution to one victim.
- Law enforcement traced an IP address offering known child-porn SHA-1 files to Dunn; forensic analysis recovered at least 20 images stored in LimeWire’s shared folder.
- At trial Dunn’s proposed instruction would have required proof that a third party actually received files; the court instead instructed that knowingly making images available on a peer-to-peer network constitutes “distribution.”
- The probation-imposed Computer and Internet Monitoring Program restricted Dunn’s computer/Internet use and required pre-approval for many activities; Dunn had prior computer-related employment.
- The victim sought restitution under 18 U.S.C. § 2259 for approximately $1.33 million in losses (reduced to $583,955 after prior awards); the district court awarded the full $583,955 without requiring an updated damages disaggregation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction on “distribution” | Gov: instruction correctly states law that making files available is distribution | Dunn: instruction treated availability as conclusive distribution and foreclosed defense expert/theory | Affirmed: instruction proper under Shaffer; making files available can be distribution and jurors decide credibility |
| Multiplicity of possession and receipt convictions | Gov: (conceded) convictions based on same images | Dunn: receipt and possession are multiplicitous when based on same files (Double Jeopardy) | Reversed: plain error; vacate one conviction per Benoit |
| Special supervised-release condition limiting computer employment | Gov: condition necessary to protect public | Dunn: court failed to make required findings (relationship to occupation, necessity, minimal restriction) | Reversed/vacated and remanded: district court did not make required specific findings; occupational restriction vacated pending proper findings |
| Restitution under § 2259 (amount and causal link) | Gov: district court’s award should stand; defendant had distributed images so liable | Dunn: district court applied wrong standard and failed to disaggregate initial-abuse harms from continuing traffic harms | Reversed/vacated and remanded: restitution inconsistent with Paroline; district court must reconsider amount using Paroline’s proximate-cause/relative-role framework and ensure damages disaggregation |
Key Cases Cited
- United States v. Shaffer, 472 F.3d 1219 (10th Cir.) (placing files in a shared folder can constitute distribution)
- United States v. Benoit, 713 F.3d 1 (10th Cir. 2013) (possession is a lesser-included offense of receipt when based on same images)
- Paroline v. United States, 134 S. Ct. 1710 (2014) (restitution under § 2259 requires proximate cause and assessment of defendant’s relative causal role)
- Rutledge v. United States, 517 U.S. 292 (1996) (court may vacate convictions to remedy multiplicity)
- United States v. Butler, 694 F.3d 1177 (10th Cir. 2012) (standards for imposing occupational restrictions under U.S.S.G. § 5F1.5)
- United States v. Mike, 632 F.3d 686 (10th Cir. 2011) (supervised-release conditions must comply with statutory and guideline limits)
- United States v. Laraneta, 700 F.3d 983 (7th Cir. 2012) (discussing distributor liability in restitution context)
- United States v. Pruden, 398 F.3d 241 (3d Cir. 2005) (occupational restrictions implicate fairness and rights; review of employment-limiting conditions)
AFFIRMED in part, REVERSED in part, and REMANDED.