United States v. Dyer

Cir.2000) (“[W]hen a defendant has a load gun person

ed caught while in the

midst of a in-person crime that involves

transactions, ... a district judge can rea sonably infer that there is a relationship ”

between gun and the offense .... Sturtevant, 33)).4

(citing 62 F.3d at

Affirmed. STATES,

UNITED Appellee, DYER,

Mark Defendant, David

Appellant.

No. 08-1343.

United States Court of Appeals,

First Circuit. Sept.

Heard 2009.

Decided Dec. 2009. 4. LePage, Because we plau- find that the district court 2K2.1(b)(6). enhancement under See sibly drugs determined were intended (noting that "possessing 4 distribution, we decline to address the gun engaged while in the casual use of alternative argument govern- raised drugs might give rise to the inference that ment that Cannon’s gun gun possessed in connection with the felony connection simple posses- with the drugs"). drugs personal sion support use would circuit. impression for this first

one of defendant, Dyer, primari- David Mark The sentencing judge erred that the ly argues sufficed the evidence determining that in an intent to traffic he had to establish 2G2.4(c)(2) of under child Guidelines, thus add- Sentencing the 2003 additional thirteen of ing a minimum Sentencing defendant’s to the months this, the trial Despite range. Guidelines to sentence his discretion judge exercised Dyer to range, and sentenced below eight followed prison, sixty months supervised release. years of of guilty possession Dyer pleaded of 18 U.S.C. in violation pornography, (a)(5)(B). 2252(A) original guideline The level under offense the total range for seventy-one fifty-seven to trafficking months; application seventy eighty-seven it made guideline that the appeal on Dyer argues months. ap- interpreted wrongly court district Maddox, appellant. for William S. 2G2.4(c)(2), trafficking cross- plied Bunker, Assistant United Rende M. reference. Paula D. Sils- Attorney, with whom States court the district argues also brief, He on Attorney was by, United testimony jury grand parte upon ex relied appellee. for thereby factual conclusions to reach its LYNCH, Judge, Chief Before under Confrontation rights violated *, Circuit RIPPLE TORRUELLA Clause. Judges. arguments both disagree with We LYNCH, Judge. Chief the facts based his sentence affirm this case. application meaning is the At issue possess- Sentencing Guideline

of a 2003 2G2.4(e)(2),which pornography, ing child I. apply sentencing judges instructed On undisputed. are facts The basic por- trafficking penalties stiffer Bureau of the Federal agents June the offense involved nography “[i]f cases (FBI) a warrant executed Investigation involving sexual material Brunswick, residence Maine ... to search including minor ... aof exploitation agents seized Dyer. David of Mark involving sexual material possessing compact and ten drive hard computer traf- intent to a minor exploitation found later (CDs), were all which 2G2.4(c)(2). The issue is disks fic.” U.S.S.G. * Circuit, designation. sitting by the Seventh Of ed, contain numerous por- he would have had to transfer the file

nography. to another location on his hard drive. He had not done so.

Later that day, Dyer consented interview with Special Agents James Lech- Forensic analysis Dyer’s of computer ner and Paul Dyer Pritchard. told them and CDs revealed several hundred images that he computer owned the and the CDs of appeared what to be child pornography. and that no one else had access to them. When the National Center for Missing and CDs, conceded, The Dyer contained im- Exploited (NCMEC) Children analyzed ages that likely would qualify por- as child the images at the request, FBI’s it deter- nography. He admitted that he had down- Dyer mined had 952 pho- downloaded loaded what he estimated to be several tographs and four videos featuring known thousand pictures nude of thir- twelve—or and actual child victims of exploita- sexual teen-year-old girls, had saved these images tion. on computer, and had burned them graphic The most of images these was a onto He CDs. images, obtained these he featuring single series a prepubescent girl. told Agents Pritchard, Lechner and either The confirmed, NCMEC Dyer did not by temporarily joining subscription-only dispute, the girl featured in these websites or through the use of the Lime- images was an actual child and a known Wire peer-to-peer file-sharing program. victim of sexual abuse. photo- One of the Dyer used these methods once or a twice graphs in the series showed an adult male week to obtain new pornographic images urinating on the young girl. In another of prepubescent girls aged fourteen photograph, girl had posed been on a younger. When asked about a notebook naked, bed with me,” the words “cut “hurt during search, seized Dyer explained me,” and “slut” written across her torso. that he had used it list key- common The image also showed holding someone “teen,” words “pedo,” like “pre-teen” knife near her vagina. image This that he entered into LimeWire to new find saved under “PTHC, the file name Ultra files. Hard Pedo (New) Child Porn Pedofilia Dyer had used LimeWire for two years Dyer 061.JPEG.” had stored the entire and explained his understanding of the series featuring the girl in the “shared” program Agents Lechner and Pritchard. folder on his computer drive, hard making knew, said, He he that when he download- it available to all LimeWire users. ed photographs or LimeWire, videos from Other in Dyer’s files “shared” folder had the program saved the files in a “Complet- titles such as “pthc kely & camila07 — ed Folder” on his hard folder, drive. This girls young pussies rub together.jpg”; Dyer noted, was automatically as a treated many acronym included the “pthc,” stand- “shared” folder the LimeWire software. ing “pre-teen hard-core,” in the title. Dyer knew that anything he downloaded would therefore be An August 22, available for Li- other charged indictment meWire users to keyword Dyer search and with knowingly possessing por- download. He also how knew to stop the nography violation of 18 U.S.C. material getting from 2252A(a)(5)(B).1 to other LimeWire 28, 2007, On November users. To prevent this file folder pleaded guilty this charge being shared with users, Dyer other add- federal district court Maine. 1. The charged Dyer also mately asked judge the trial to dismiss this transportation of child pornography ulti- but count. por- ty nature version applied The court computer discovered nography avoid in order to Sentencing Guidelines said had He testified pre-sen- The CDs. considerations. facto post ex he understood (PSR) during dis- the interview to the submitted report tence pornography downloaded offense level total calculated trict court avail- be made Sentencing drive would Guide- onto his shared 25 under 2G2.4, gov- users. to other LimeWire used U.S.S.G. able PSR lines. The con- convicted Lechner’s also introduced to defendants ernment applied which car- into of the interview report temporaneous adjust- ad- Dyer’s report of included offense level The a evidence. ried base a num- reflect the prevent to how to upwards that he the sentence mission knew ed not He had being opted enhancements.2 shared. of relevant files ber from Another exhibit feature. to disable this conference, gov- the pre-sentence At the analy- forensic of the the results displayed have should PSR argued that the ernment a of computer and selection Dyer’s sis of cross-reference trafficking the applied images discovered graphic the more have and should U.S.S.G. in- did folder. Dyer’s “shared” trafficking provision used therefore sentencing. any evidence troduce to provision possession rather than for sen- level Dyer’s base offense calculate a Fifth of this evidence basis On the un- enhancement The sentence tencing. facts, United similar involving case Circuit should trafficking cross-reference der Todd, Fed.Appx. States v. con- imposed, the have been Cir.2004), applied court the district tended, had manifested because cross-reference U.S.S.G. trafficking distribute intent to 2G2.4(c)(2). However, on the it did so making it accessible by computer his on of the case specific facts basis Dyer argued users. other LimeWire argu government’s rejected the implicitly computer folder on a shared leaving files would any use of LimeWire ment that, in “trafficking” not qualify did due to automatically constitute event, evidence was insufficient any there file-sharing features. program’s traffic in had intended that he noted, judge sentencing “Trafficking,” the pornography.3 Dyer had exhibited bartering, and included making knowingly by to traffic” an “intent hearing on March sentencing

At the available images of child testified and Lechner Agent sentencing LimeWire users. other his interview regarding cross-examined facts essential judge emphasized role in described Dyer. Lechner with Agent told Dyer had residence, this conclusion: his subse- Dyer’s of the search down file he knew FBI’s Lechner Dyer, and quent interview would be available LimeWire from loaded quanti- regarding conclusions ultimate acceptance responsibili- adjusted for two-level a calculated Specifically, the PSR 2. of 25. offense level resulting in a ty, final prepu- involving a for materials enhancement minor, two-level enhance- another bescent en- the recommended Dyer also contested 3. involving of a the use ment for images possession of sadistic hancements pos- enhancement for computer, four-level a images. than 600 possession more and for involving maso- sadism and session however, not, challenge en- these He does chism, pos- enhancement for five-level ap- hancements, applied, on court which the also images. The PSR of over session peal. users; to other he knew where application LimeWire guidelines pertaining to stored the files he downloaded his com- possession of child and not pornography, puter, they and that could be accessed and “trafficking.” The district court’s inter users; downloaded other LimeWire he pretation of meaning of an “intent to knew that he could have moved the file to traffic” under and of the prevent different location to other users cross-reference questions law, are which it; accessing and he had used Lime- we review de novo. See United States v. Wire for years, two during which he down- Cruz-Rodriguez, (1st Cir. loaded files and had his own files available 2008). We review the judge’s district find acts, download. These the sentencing ings of error, fact for clear govern and the found, judge demonstrated an intent prove ment must facts essential to sen traffic within the meaning tencing enhancements a preponderance The sentencing judge also determined that of the evidence. at 31 Id. & n. 8. this conclusion was consistent with Con- The issue before us is not whether mere gress’s punish intention to those who fur- use of LimeWire one who possesses thered the market for child pornography child pornography shows an to traf- more severely, reasoning that file-sharing simply fic because LimeWire is a file-shar- was qualitatively different from pos- mere ing program. government The has with- session of files on an inaccessible computer drawn that argument and the district court hard drive location. adopt Rather, did not it. the outcome of In calculating Dyer’s sentence, the sen- depends this case upon particular facts tencing judge emphasized Dyer that had on a per not Dyer’s se rule. challenge pleaded guilty to an exceptionally serious raises issues of interpretation of both “in- offense that involved the sexual abuse of “traffic,” tent” and but turns ultimately on real children. But the sentencing judge the facts. also acknowledged Dyer that had received an honorable discharge from the United The Guidelines set forth a distinction States Navy and was a first-time offender between “possession” of and “trafficking” who had shown remorse and a willingness in child as those terms are a undergo sex offender treatment pro- used in §§ U.S.S.G. 2G2.4 and gram. Dyer’s total offense level under the Dyer suggests a series of limitations on Guidelines was twenty-seven, which would the definition of trafficking, which we re ordinarily result in a prison sentence of ject. To define the kind of acts that con between seventy eighty-seven months. stitute “trafficking” opposed to mere However, in light of Dyei*’scharacter and possession, employ we ordinary rules of circumstances, the sentencing im- judge statutory construction. See United States posed a below-Guidelines sentence sixty Luna-Diaz, (1st v. Cir. prison, months in followed eight years 2000) text, (looking to guideline com of supervised release. mentary, statutory context, and use sim ilar language in criminal appeals now statutes to inter this sentence.

pret the meaning of a term in U.S.S.G. 2L1.2); DeLuca, United States v. II. (1st Cir.1994) that (holding A. Interpretation Guidelines Terms Sentencing Guidelines should be interpret Dyer’s argument main on appeal is that ed according principles statutory con the facts of his struction). case supported only the terms, imposed even enee, could be by its Sentencing Guide- the 2003 text of

The others received absent evidence posses- sentencing for separated lines the defendant. trafficking of child sion Sentencing subsections. into two distinct only to demon needs government The 2G2.2 apply U.S.S.G. were to judges evidence by preponderance a strate in child convicted defendants requisite possessed a defendant transporting, receiving, pornography; See, e.g., United “intent to traffic.” material; or advertising such shipping, (2d Jordan, Fed.Appx. Cir. an intent to material such possessing 2004). limi unsuccessfully advances a of- carried base guideline traffic. This text, tations, “intent” in the what not By § 2G2.2. 17. U.S.S.G. level fense We, on what “traffic” means. means and prescribed contrast, 2G2.4 U.S.S.G. Jordan, reject the Second Circuit like convicted 15 for defendants level of base that the cross-reference argument pornography, possessing only of when governed only §in next. we describe condition subject to the ac proved that defendant government trafficking and did tually engaged is that cross-reference condition reject also to do so.5 We merely intend 2G2.4(c)(2), guideline, Dyer’s argument involved the offense “[i]f mandated actually re parties third must show the sexual involving material trafficking in de images from trieved downloaded (including receiv- minor of a exploitation the defen computer to show that fendant’s or advertising, shipping, transporting, ing, to traffic. had an intent dant sexual involving the material possessing arguments traf- legal intent to a minor with we First address exploitation of “traffic” to use the terms judge meaning was fic),” sentencing then the about whether, in “intent”; instead. then turn guideline, 2G2.2, trafficking and we § sufficed 2G2.4(c)(2).4 meanings, the facts those light of § U.S.S.G. those to meet definitions. result, language plain aAs 2G2.4(c)(2) unambiguously extended § under “Traffic” Meaning 1. to defen- cross-reference both trafficking § por- in child actually trafficked who dants not de- do the 2003 Guidelines Because possessed who to defendants nography “traffic,” interpret this we traf- fine the term intent of with the commonly accepted looking to its the act. word yet completed ficking but had DeLuca, 9. To 17 See meaning. cross-refer- words, this In other Traffic; Possessing Material with Intent the Guidelines Subsequent amendments to 4. Minor). Exploitation of a Involving the Sexual single sub- these offenses into consolidated sentencing section, en- provisions unpublished Second 5. While Jordan upon depending and reductions hancements persua- it to be consider opinion, we. Circuit conduct to which defendant's the extent squarely addressed authority it since sive U.S.S.G. possession. See beyond mere went in the by the defendant argument made same (2004) (Trafficking In- in Material § 2G2.2 Co. appeal. Sec. Ins. present See of Hartford Minor; Exploitation Inc., of a volving Line, the Sexual 314 Freight Dominion v. Old Soliciting, (S.D.N.Y.2003) Transporting, Shipping, 201, Receiving, n. 1 F.Supp.2d 203 opinions Involving unpublished the Sexual Advertising (treating Material Circuit or Second re- authority to law Minor; Possessing equivalent Material least" "at Exploitation of a notes). view a Minor Exploitation of Involving Sexual traffic in something commonly means [t]o to include § 18 U.S.C. 2252A. See Child “trade in (goods, esp. or deal drugs illicit Pornography 1996, Prevention Act of contraband),” or other Black’s Law Dictio- 104-208, 121, Pub.L. No. 110 Stat. (9th nary 2009), ed. or engage (codified 3009-26 to 3009-4 amended “the activity exchanging commodities § 2252-2252A, U.S.C. 2256 and 42 bartering or buying and selling,” Webster’s 2000aa); U.S.C. see also United States Third New Dictionary International Sromalski, (7th v. (1993). Cir.2003) (finding 2G2.2 and related guidelines should be interpreted in relation argument, At oral defendant ar to the harms Congress identified when gued trading that mere or bartering of Act). passing this Section 2252A includes is not trafficking. We separate prohibiting subsections the distri reject argument. reject We also bution, sale, possession por argument that a defendant expect must nography, with a further prohibit section some gain financial from trafficking. In ing the distribution child pornography 2G2.4(c)(2), §of context a defendant to minors with the intent of inducing them traffics child pornography if he engaged to participate in illegal activities. See 18 to engage intended in an exchange or 2252A(a)(1)-(6). U.S.C. purposes For trade of images. such No financial gain or punishment, 2252A(b) distinguishes be expectation of financial gain necessarily is possession tween offenses, and all other required. See Todd, United mandating a maximum sentence of 10 Fed.Appx. Cir.2004), vacated years and a sentence be grounds, on other 543 U.S. 125 S.Ct. tween five twenty years for all other (2005) 160 L.Ed.2d 1031 (noting that 2252(b)(1)-(2). offenses. See id. “trafficking” ordinarily buy means “both ing selling money commodities for rationale underpinning exchanging amendments, by barter”); commodities said, Congress was that the Parmelee, United v. States 583, 319 production F.3d dissemination and por (3d Cir.2003) (observing nography that “traffick from possession differs because ing” § under 2G2.2 active bartering); participation includes in the market for child Johnson, United States v. 83, exploitation 221 F.3d encourages exploita further (2d Cir.2000) (same); tion United of States v. children to an greater even degree. Horn, 781, (8th Cir.1999) 187 F.3d See H.R.Rep. 104-863, (1996) No. at 28-29 (“Section 2G2.2 and the (Conf.Rep.); cross reference in see also United States v. Gro 2G2.4(c)(2) apply senheider, when the offense in Cir. 2000) (footnote volved exchange omitted) (“It the or barter of [child clear that is pornography], and not Congress ... only when this established a series distinctly of material sale”). was offered for separate These respecting offenses child pornog cases confirm that the raphy, crucial separat acts with higher sentences for offenses ing possession mere involving from trafficking in be, conduct more likely to volve the intent to share images directly, of more child harmful to minors than the others, with irrespective possession mere of offense. Similarly, the financial motive. guidelines clearly reflect consideration of whether and degree the to which harm to This interpretation is borne also out minors is or involved.”). has been legislative the history of the 1977 Protec- tion of Against Children Exploita- Sexual Congress further found that por- child (Act), tion Act which was in amended 1996 nography victimizes children only not at 1984, pp. Cong. & Admin.News the U.S.Code but each time abuse time of actual anew, 492, harm to the child Because “the 493. and distributed accessed image is initiate or or not those who existence causes exists whether “its continued since continuing abuse are motivated carry of sexual out schemes victims child future children in deliberately those broadened by haunting Congress harm profit,” 104-863, By at 28. No. H.R.Rep. to better serve its years.” of the Act scope metric, dif- trafficking qualitatively is 98-536, 2-3, this at Rep. H.R. purpose. war- mere ferent Cong. & Admin.News U.S.Code —and It makes these sanctions. rants heavier 493-494.6 pp. keeps viewers new

images available to analysis, conclude that Based on this we circulation, in image exploitation interpreted the properly court the district a mar- growth may encourage thus under cross-reference exploitation. See leading further ket 2G2.4(c)(2) to include which situations Ferber, 747, 756-59 458 U.S. v. New York exchange a defendant intended 73 L.Ed.2d 102 S.Ct. n.& pur- commercial without Hoey, 508 F.3d (1982); United States pose. (1st Cir.2007). 687, 692-93 Second, history unequivo- legislative Under Meaning “Intent” 2. por- “trafficking” cally shows materials bartering these means nography court, Dyer nev the district Before is involved. no stake when financial even to set “specific intent” used the term er found that Congress expressly In requirements applying legal forth market dominated argu 2G2.4(c)(2), waived the and has pornographic who bartered by collectors result, did court district ment. As had collections and expand their images to meaning directly comment on See trading profit. interest little §in as used the term “intent” (1984); 98-536, see at 16-17 H.R.Rep. No. light concluded It rather Jesús, v. Morales-De also United of Li- concerning Dyer’s use facts specific Cir.2004) (1st (explaining meWire, had been requirement the intent the commercial Congress eliminated first time on for the met. raises preva- requirement because purpose re argument appeal the distributors of child pornography lence intent, only but quires evidence with each other shared who legal argument passing any and without motivation). Concerned pecuniary no argument This this assertion. support under-enforced, Con- being Act was accordingly appeal. We is twice waived specifically to statute amended the gress there find plain for error. We review it to these collectors. that it extended ensure law, reject a read no error of we 1984, Act of Pub.L. Protection Child See require would (codified ing of as 98-292, 204 98 Stat. No. pornogra to traffic in 2252, 2253); intent 2251, §§ at amended 18 U.S.C. (1983), phy. 2at Rep. H.R. see also 'presumably Jesús, legislation was ings, subsequent we in Morales-De we observed

6. As findings purposes with based on similar history and con- legislative consider ” newly covered.' respect to the areas prior gressional iterations findings Wirtz, Maryland v. (quoting 10 n. meaning, F.3d at present since to its Act relevant 2017, 88 S.Ct. 190 n. passed related U.S. Congress previously “when (1968)). by applicable L.Ed.2d accompanied find- legislation recently emphasized This court the chal- multiple phone about calls” absent lenges in defining term “intent” wicked intention motivating them. Id. when it is used to denote an element of a crime. “Intent” has at possible least two ordi- Tobin, See United States v. 552 F.3d 32 nary meanings context, in the criminal re- (1st Cir.2009) (“ areas of ‘Few criminal law ferring either to the fact that a defendant difficulty more pose proper than the defini- purposefully affirmatively desired an tion of the required mens rea or, unlawful outcome alternatively, to a ”) particular (emphasis original) crime.’ defendant’s knowledge reasonable that his (quoting Bailey, United States v. 444 U.S. might acts result in such an outcome. See 394, 403, 100 S.Ct. 62 L.Ed.2d 575 403-04, Bailey, 444 U.S. at 100 S.Ct. 624. (1980)). Tobin, interpreted In we “intent” The texts of 2G2.4 and 2G2.2 are used a criminal prohibiting statute explicit on what kind of scienter re- harassing phone by employing princi- calls quirement the Commission intended. ples statutory looking construction §While pertains 2G2.2 to trafficking and plain meaning, structure, statutory predominantly 2G2.4 is concerned with legislative history. When these indicia possession, guidelines both penalize con- inconclusive, were “general we turned to duct that Congress inherently has deemed considerations,” namely the principle that harmful. That the Guidelines enhance crimes, for most ordinarily “intent” re- punishment for both actual trafficking and quires only that the reasonably defendant for intent to traffic suggests the Commis- proscribed knew the result would occur sion intended to penalties enhance (general intent), not that the defendant those support whose actions the market specifically intended such an outcome as for child and for those who intent). purpose (specific Id. at 33 should reasonably know that their conduct (citing Bailey, 444 U.S. 100 S.Ct. would do so. There is no indication that 624); Pitrone, see also United the Commission depart intended to (1st Cir.1997) (observing and the ordinary meaning of the term “intent.” applying the rule that when the text of a Further, every there is reason to think the indeterminate, criminal statute is courts was, Commission in this understanding of context, should look to including purpose, intent, carrying out congressional intent. legislative history, and “background legal Certainly, the Commission chose not to principles,” to discern kind of intent use alternate language which would have mind). Congress had in required specific intent.

We then reasoned that principle this incorrectly dissent argues that the that “intent” ordinarily general means in- phrase “with to” is a term of art tent would have less force in some situa- that mandates conclusion that tions where the consequences of the action requires proof that a defen- are not necessarily wrong or harmful. specifically dant intended traffic in child Thus, when 47 interpreting pornography. U.S.C. argument That is undercut 223(a)(1)(D), § which prohibits making by re- Bailey, which noted that “the word phone peated calls to the same number ‘intent’ quite is ambiguous” when inter- harass, with an intent to Tobin held that preting what the court of appeals had must prove the defendant meant when using precise that phrase. specifically intended person to harass the 444 U.S. at 100 S.Ct. 826. The use of at the called number because “[t]here is the words “intent traffic” does not by nothing inherently or suspect wicked even signify intent, itself specific as numerous

529 upon horrific effect equally has an phy contexts. in other have found courts other irrespective of whether involved children instance, punishes 2320 U.S.C. For actively merely or the trafficker desires alia, “intentionally traf who, anyone inter likely make his actions knows that will goods in or ser to traffic attempts or fics more avail- a knowingly uses counterfeit vices eliminated Congress That able others. goods in with such on or connection mark in that child traffickers requirement 2320(a)(1). Oth 18 U.S.C. or services.” only prosecuted if could be specific that intent have held circuits er pur- acting with a commercial they were culpability, on required not Congress’ understanding pose underscores requirements intent specific grounds culpable regardless is conduct such in criminal prerequisites ordinarily are not Rep. H.R. 98- underlying motive. See not history did legislative and the offenses 16-17, & Ad- Cong. at U.S.Code See, e.g., interpretation. such support 1984, at 507-508. pp. min.News Gantos, 41, 42- F.2d States v. United Cir.1987). Likewise, to the consider (8th “general We turn the Second also in These consid explained ations” Tobin. 18 U.S.C. interpreted has Circuit confirm strongly erations “knowingly and it crime to makes a which require specific, does not ], ], defraud, or pass[ utter[ intent to rest intent. We should instead purposeful off, negotiation, or payment in put in assumption discussed upon default false, foreign counterfeited” forged, or an intent elsewhere that Bailey and See bonds, general a intent crime. only as like most oth pornography, traffic Mucciante, v. F.3d United States crimes, only intent. requires general er Cir.1994).7 (2d at issue in phone calls repeated Unlike the Indeed, se language per as treating such Tobin, pornography qualifies sharing requirement specific a imposing Indeed, Tobin inherently bad conduct. careful, context-specif- counter to runs Anoth this exact itself makes distinction. structure, text, weighing legislative ic at issue in er statute subsection that we history, general considerations calls if phone making prohibited Tobin to our contrary and is long employed have could be those involved content calls analysis Tobin. in with the pornography, considered turn, history, supports legislative Tobin person. another tent to harass knowl- in the sense of reading that intent sus “involve[d] this subsection stated that the ev- and con Congress malign described edge suffices. or even conduct” picious issue, provision the child market that unlike ils of cluded only involved, meant in this subsection child victims “intent” focusing on the To consequences.” knowledge “mere the motives between distinguishing bin, at 33.8 Trafficking pornogra- in child purveyors. Stewart, intent); United States held that 18 U.S.C. circuit also

7. One has (9th Cir.2005) (same). 115(a)(1)(B), prohibits of as- threats which sault, against federal kidnaping, or murder crime of recognized that the officials, we have 8. While judges, law enforcement officers with in- substance possession of controlled their official duties or intent to” inhibit "with them, proof de- requires that the tent distribute against is a retaliate "with intent to” purposefully intended specifically and United fendant general specific intent crime. See drugs, resulted conclusion traffic Ettinger, 344 F.3d 1156 Veach, States v. language includes the statutory Cir.2003); 455 States v. but see United intentionally” by Cir.2006) "knowingly 628, (6th phrase or (requiring 530

Further, courts are ordinarily concerned dard of review. We review predominantly specific novo, the distinction between legal questions de while we defer to general defining intent when elements of a fact-driven determinations and review put crime order to defendants on notice them for clear error. See United States v. Sicher, of where culpable 64, (1st the line between 576 F.3d 70-71 & n. 6 See, Cir.2009). innocent e.g., conduct falls. Carter v. The district application court’s States, 255, 268-69, 2G2.4(c)(2) United 530 U.S. 120 of heavily this case was 2159, (2000). S.Ct. 147 L.Ed.2d 203 fact-dependent, No and we find that it did not such applies concern at sentencing. concluding err in online con routinely interpret Courts the Sentencing duct showed “intent to traffic” under Guidelines looking related conduct We would reach this con beyond elements of a criminal clusion even if we were to review the offense, purpose 2G2.4(c)(2) because the is to assess application district court’s severity of the particular defendant’s de novo. in light crime of the surrounding circum- Internet, capacity and its facili States, stances. See Witte v. United 515 bartering tate online of computer files be 389, 402-03, 2199, U.S. 115 S.Ct. 132 tween collectors purveyors of child (1995). L.Ed.2d doing, 351 In so courts pornography, readily a single links com are not punishing a defendant for a dis- puter possible user to a network of others. offense; they tinct are instead evaluating Lewis, 208, See United States v. 554 F.3d totality of a defendant’s conduct in (1st Cir.2009). It is clear that for order to arrive at a reasonable sentence. there to be meaningful distinction be Amirault, 9, See United States v. 224 F.3d tween possession the crimes of and the (1st Cir.2000) (holding that a sentencing traffic, enhancement for intent more court can past, uncharged look to conduct than receipt mere pornography on impose an aggravated sentence for the computer must be shown possession pornography of child because Sromalski, apply. such upon gravity conduct bears F.3d at 751-52. Other circuits have held offense). that this cross-reference applies to defen

We reject therefore the defendant’s ar- arranged dants who exchange images gument that must neces- pornography with others over e-mail sarily show the actively defendant posting images these in an online subjectively get desired others would See, chatroom. e.g., United States v. of child from him and Bender, 290 F.3d Cir. ordinary general 2002) intent does not suf- (applying cross-reference to defen fice. dant who traded over email); Johnson, United 221 F.3d B. Application “Intent to Traffic” (2d Cir.2000), denied, cert 533 U.S. This Case (2001) 121 S.Ct. 150 L.Ed.2d 757 We consider the ap district court’s (applying to defendant who plication of guideline this to the facts of conceded that he and received” im “sen[t] this case to be a question mixed ages law and comput fact, er). which we using review a sliding stan- See, (6th Cir.2005). concerns with e.g., overbreadth. United Both of those concerns Hassan, (2d

States v. 542 F.3d Cir. inapplicable present are in the context. 2008); Caseer, United States v. images making “[b]y downloading use of whether the not decide doWe others,” be- accessible to defendant as LimeWire them such file-sharing software trafficking sentencing pursuant qualified eligible came have per se would 2G2.4(c)(2). 2G2.4(c)(2)).10 holding centers Our under As the sentenc- this case. the facts of clear, today we do not reach the To be chose to judge emphasized, ing any LimeWire abstract issue of whether LimeWire, a use frequently download downloaded child user who that creates software peer-to-peer type of been sentenced under could have users, so to and he did system of a shared 2G2.4(e)(2) inher- because of LimeWire’s images of acquire file-sharing purposes. features and ent He downloaded collection.9 personal his admission, own was different- Dyer, by his that he a “shared” folder files into these unwitting LimeWire ly situated from available to others. be made knew would that down- failed to realize user who gave no years and did so for two He files, to a saving he was also them loading Pritch- Agents Lechner indication “shared,” universally folder on accessible had he not stopped have that he would ard the facts of this computer. On his own turn off knew how to arrested. He been case, to con- the district court was correct LimeWire “sharing” feature of Dyer’s conduct warranted clude that accessing these users from prevent other §of application features, not, any point, make he did at but actions, Dyer By so. his an effort to do III. part of a to become steps deliberate took that the district Finally, asserts community consumers virtual Lechner’s testimo- upon Agent relied court images to en- shared who grand jury to conclude ny before a holding Our their own collections. large he could have made Dyer knew that to traf- an “intent that these acts showed other Li- unavailable to pornography files holdings of comports with fic” likewise transferring the files to meWire users See patterns. similar fact other circuits on claims, This, Dyer vio- another location. Groenendal, United States rights be- Clause lated his Confrontation (6th Cir.2009) the de- (holding that never jury testimony was grand cause under engaged fendant he had no record and because part of the images on- posted when he testimony during challenge that chance to group); pornography-trading to child line sentencing hearing. Todd, (finding at 250 Fed.Appx. file, it in the copy LimeWire saves a LimeWire's previously discussed

9. We have folder. Id. at 211. "shared” user’s peer-to- length. LimeWire "is a functions application connects sharing peer file Moreover, facts would be sufficient these 10. files with one to share data users who wish if traffic even find an intent for us to Lewis, 211. When a 554 F.3d at another.” specific require were read to LimeWire, program cre- user downloads purposeful Dyer’s long-term, use intent. LimeWire, computer where new folder on his ates a to turn off deliberate failure will be LimeWire downloaded from files function, file-sharing and his awareness designates this as LimeWire saved. pornogra- could download other users folder, meaning its contents "shared” reason- folder could phy from his "shared” users. automatically be available to other will ably to amount to be found users, just these files free and download with other Users can locate these share likely describing knowledge a result was the charge by entering terms that such search consequence of his actions. downloads When a user the desired content. merit, argument lacks I nography This intent to traffic. write least because the Confrontation Clause separately my to state that conclusion sentencing. 2G2.4(c)(2) at apply § does not See United requires specific intent Luciano, F.3d in traffic note (1st Cir.2005). that the facts of this case fail to establish Dyer specific that exhibited intent to traf- Further, Dyer argu- failed to raise this pornography. join fic in child I ma- the court, ment the district before in jority rejecting Dyer’s claim that the claim would therefore have to rise to the sentencing court violated his Sixth warrant plain level of error to reversal. right Amendment to confront the wit- Antonakopoulos, See United States v. presented against nesses him. (1st Cir.2005). There is no possibility in plain error this case. 2G2.4(c)(2) requires § I. U.S.S.G. Dyer presents no evidence that the district specific intent upon grand jury court relied Lechner’s Moreover, The determination of the that sentence testimony. Dyer’s counsel ef- applied Dyer’s should be conviction for fectively Agent cross-examined Lechner possession pornography hinges of child Dyer’s understanding file-sharing about this, upon interpretation at sentencing hearing. Beyond the of the term “intent the Dyer district court’s that traffic” within the purview conclusion knew 2G2.4(c)(2). § he sharing majority could have disabled the The interprets feature supported by is a number of documents term “intent to traffic” to require general record, throughout including in gov- intent the sense of knowledge, and not A sentencing. ernment’s Exhibit That specific purposeful I respectful- intent. exhibit, fact, explicitly in ly summarized disagree interpretation. with this Agent Lechner’s conclusion from his inter- During sentencing proceedings Dyer Dyer “you view with that knew argued that he had no intention to distrib- would have to move file physically images possessed ute the he and that he another location to make it unavailable did not “an any- have actual intention for sharing.” body else to images.” receive those The

The sentence is hand, government, on the other contended affirmed. Dyer possessed that with in- TORRUELLA, Judge Circuit tent to traffic. Dyer’s On the basis of (Concurring part Dissenting arguments taking into consideration part). the government’s position, the district I majority’s dissent from the conclusion court concluded that actions met 2G2.4(c)(2).1 that Appellant Dyer (“Dyer”) Mark David requirements § ap-On properly sentenced under peal, Dyer argues U.S.S.G. por- failed to show that he specific acted with However, view, majority 1. The my government’s underscores the fact that the fail- sentencing interpreted court never the term argue general ure to intent suffices in this (c)(2). purview intent within the 2G2.4 case, interpreted reveals that the district court majority also concludes that the district light Dyer’s argument plainly court did not err when it concluded he lacked actual or intent to traffic. Dyer's actions met the Guideline's intent hold, The district court therefore did not requirements. concluding, majority In so majority today, general does gen- assumes that the district court inferred a 2G2.4(c)(2). suffices to sentence under requirement eral intent ficulty defining face in the mens rea courts traffic in child intent to required particular not contested for a crime and dis- government has the 2G2.4(c)(2) requires spe- § cussing interpretations the different of assertion intent). general specific cific intent. and But it is criti- cally in a case like this where important matter, majority the a threshold As imposed to be on one convict- the sentence argument Dyer has waived the claims that de- possessing ed of 2G2.4(c)(2)requires government § the pends on the state of mind with which he specific with intent that he acted prove to possessed said material.2 ma- pornography. in child The to traffic justify application the jority’s attempt to A intent crime is one “commit specific fails not the review this case plain error voluntarily purposely spe with the ted Dyer record shows that least because the for something cific intent to do the law specif- that he lacked actual or argued has Blair, 639, v. 54 F.3d bids.” United States intent, that the but it is clear ic because (10th Cir.1995)(internal quotation 642 argued never government omitted). It than a requires marks more 2G2.4(c)(2) general intent to requires § knowing violation of the law. United Thus, government put never traffic. Kimes, v. 246 F.3d States to decide position court the district Cir.2001). The defendant must act with apply suffices to general whether intent objective purpose bad or with the of com 2G2.4(c)(2). majority § The therefore errs mitting prohibited by act the law. See developing his it faults for not when Blair, 642; at United 54 F.3d argument, though even specific intent (D.C.Cir. Kleinbart, 592 n. 4 argued specific has that he lacked 1994). contrast, general In intent crime claimed intent and the never of an requires knowing commission apply general intent suffices Kleinbart, at unlawful act. 27 F.3d 592. 2G2.4(c)(2). partake I cannot therefore “voluntarily must act The defendant that this court’s majority’s in the assertion mistake, intentionally, and not because of required by rea interpretation of the mens Blair, inadvertence or accident.” 2G2.4(c)(2) by plain error is controlled at 642. analysis. provides argu- majority The several general and The distinction between conclusion that support ments to its specific intent is sometimes difficult and “intent traffic” under term States v. Bai- times elusive. See United majority 394, 403, requires general intent. The ley, 444 U.S. S.Ct. Sentencing claims that Commission (1980)(acknowledging the dif- L.Ed.2d distinction is crucial in this majority argues Guidelines. This The that the distinction be- 2. general culpable intent is not criti- tween the less conduct case because we are not concerned cal in this case because into the more serious con- bleeds sepa- defining the elements of a crime to of criminal duct basis wrongful rate and innocent conduct. interpreta- Bearing mind that our intent. leeway majority suggests that the sen- further requires case us to tread tive task in this considering past tencing judges enjoy in un- mental the “relation between some waters of charged the conclusion that conduct bolsters act,” a harmful punishment element required general the mens rea intent satisfies States, 342 U.S. 250- v. United Morissette why by § we I fail to ascertain (1952), it is 96 L.Ed. 288 72 S.Ct. spe- disregard distinction between should carefully the level of cul- crucial scrutinize general interpret intent when we cific Sentencing prescribe. pability the Guidelines Sentencing mens rea established language objective promoting chose not to use would re- with the some un quire specific activity). intent and that both the lawful example, For the federal legislative history panoply stat- statute that knowing criminalizes the use utes that criminalize distribution and traf- of unauthorized access devices “with intent defraud,” ficking pornography, 1029(a)(2), and the 18 U.S.C. has “general considerations” of criminal intent been interpreted require specific support Ismoila, the conclusion that to defraud. United States v. (5th 380, Cir.1996).3 requires to in- general opposed specific Similarly, in Regrettably, majority misappre- context, tent. the drug-trafficking the we have con Guidelines, ignores sistently hends the text of the prove possession held that to mandate, misapplies their clear the intent to distribute in violation of 21 U.S.C. “general 841, § government considerations” of criminal law the must establish that and intent. knowingly the defendant intentionally possessed a controlled spe substance with 2G2.4(c)(2) First, plain language § the cific intent to distribute. United States v. required reveals that the spe- Commission 124, García-Carrasquillo, 483 F.3d cific in intent order to find that one con- (1st Cir.2007); López- United States v. possession victed for of child (1st Cir.2002). 1, 19 López, 282 F.3d should be sentenced under U.S.S.G. 2G2.2, § trafficking which is the Additionally, Guideline. the structure By traffic,” 2G2.4(e)(2) employing § the term “intent to and its interaction with Sentencing § Commission chose lan- 2G2.2 bolster the conclusion that guage that interpreted by has been several Sentencing Commission specific included a require specific of our in- requirement. sister courts intent The Commission add- Kimes, tent. (explaining § 246 F.3d at 808 ed 2G2.4 to involving address offenses Congress that when intends to possession create a pornography, of child as distin- specific intent crime it does so explicitly by guished trafficking offenses which employing, example, the term § “with are covered under 2G2.2. The Commis- to”); intent see also United States v. sion also directed that when the offense Welch, (10th 327 F.3d trafficking involves in pornography, Act, Cir.2003)(interpreting the Travel including possession of said material with § holding by traffic, U.S.C. that requir- intent an enhanced sentence ing promote an act with “intent to ... ... should imposed be under the trafficking promotion or facilitate the ... of an provisions unlaw- 2G2.2. U.S.S.G. activity,” 2G2.4(e)(2). ful required specific § the statute Put way, another 2G2.4(c)(2) proof intent or that the defendant acted allows a sentencing court to majority 3. The when errs it relies on the mindful of the fact that the criminal law does Eighth require Circuit’s decision in United knowledge illegal, States v. not that an act is Gantos, (8th Cir.1987) wrong, 817 F.2d blameworthy, or United States v. Bak- er, argue specific ordinarily Cir.1986) (citation intent is not 807 F.2d prerequisite omitted), in criminal offenses. The rejected pro- Court the Gantos court specific posed Gantos reviewed a specific instruc- intent instruction. The court specific requiring tion that defined rejected proposed intent as thus instruction on the evidence that the defendant knew that controversy his act basis that the statute in did purposely violated the law and that require knowledge he intend- purpose to violate the assertion, Relying general ed to violate the law. contrary on the law. majority's But to the principle ordinarily knowledge that an specific Gantos court did not hold that act violates the law is not an ordinarily required essential element intent is not in criminal offense, Gantos, 817 F.2d at offenses. to a defendant who has apply purpose 2G2.2 been commercial is not inconsis- pornogra- convicted for tent with interpretation phy government when the establishes requires of the evidence that preponderance show that specifically defendant in- to traffic in defendant intended said mate- tended to traffic in pornography. requirement rial. A intent is Thirdly, my view, the majority misap- thus consistent with the Commission’s en- plies the general considerations of criminal deavoring separate punishment pos- law when it relies on this court’s decision session of child from those Tobin, United States v. offenses involve said (1st Cir.2009) to hold that guarantees only material. It also requires Tobin, general intent. major- possessors those who are more than mere ity argues, allows this court to rest on are sentenced under default assumption “general or trafficking provisions. 2G2.2 and its consider- ation” that intent in most crimes means Secondly, disagree I majority’s with the general intent. I disagree. In pursuing requirement assertion that a general argument, this majority the fails to ascer- intent comports legislative better with the tain although general that intent has been history of the statutes that criminalize held sufficient to meet the mens rea re- trafficking pornography. in child In the quirement crimes, for most general this view, majority’s the fact that in trafficking principle ordinarily applied is where the child pornography longer requires no criminal statute is silent as to the mens rea proof that the defendant acted with a com- See, required. e.g., Carter v. United purpose mercial reveals that motives are States, 530 U.S. irrelevant that S.Ct. consequently (2000) L.Ed.2d 203 interpreted (concluding should be to re- the quire general pursu- intent to traffic. In presumption in favor of only scienter re- ing argument, majority this conflates quired proof general intent in federal the actions that amount to in robbery bank statute that was silent as to pornography child with the mens rea re- requirement); the mens rea Bailey, quired by the Guidelines. The fact that 406-08, U.S. at (inferring 100 S.Ct. 624 a gain purpose financial or commercial is not general requirement intent from federal necessary to convict an individual for traf- criminalizing escape statute from federal ficking in pornography child informs our custody in the of language leg- absence interpretation term “traffic” clar- history islative regarding the mens rea ifying actions that amount to traffick- conviction). required where, But ing However, in pornography. child this here, plain language statutory legislative history inquiry does not end our text requirement, includes a mens rea we regarding the mens rea an individual must to general need resort consider- possess exhibit to be deemed to child por- by majority. ations invoked nography with intent to traffic. We are Although general may generally intent here with concerned whether the defen- be sufficient most crimes to a support possessed dant child pornography with in- conviction, Bailey, U.S. at traffic, tent to not with whether he was dealing we are S.Ct. this case with expectation moved a recoup prof- category require it. The narrow of crimes that Congress fact made traffick- ing pornography heightened culpability. child a crime level of mental regard- Therefore, less of whether the principle ordinarily defendant was moved text). seen, statutory As has been most crimes ine the intent suffices general the words “with by employing in this case. inquiry our not control does traffic,” language chose the Commission errs in its reliance majority Finally, interpreted require spe- that has been traf- to conclude that from Tobin on dicta purposes cific intent and the structure inherently is ficking child support this conclusion. of the Guidelines knowledge of therefore bad conduct and in order to I therefore hold would action satisfies of such consequences one convicted for sentence requirement. In rea mens the Guidelines’ pursuant Tobin, a statute which held that this court 2G2.4(c)(2), prove must phone making repeated criminalized that the defen- beyond a reasonable doubt required specific to harass calls with intent possessed dant further intimated that intent to harass traffic in said material. specific intent to by a required dif- general intent could be that criminal- said statute ferent section of II. The facts are insufficient involved calls or calls ized obscene Dyer exhibited to conclude 552 F.3d at 33. The pornography. specific intent traffic only with inter- Tobin court was concerned “traffic” not de Although the term is that criminal- the statute’s section preting Guidelines, encompasses in the it fined phone calls making repeated ized the for buying selling commodities both Therefore, any ex- to harass. with intent by bar money exchanging or commodities making of obscene related to the pressions Paul, v. 274 F.3d ter. See United States pornography child involving or calls calls (5th Cir.2001). 155, Evidence that a 163 the that not bind constitute dicta does or sent pictures defendant traded online addition, In case. present court has images received via the Internet its determination court in Tobin reached traffick found sufficient to constitute been as a whole and by interpreting the statute 2G2.4(c)(2). United States v. ing under posed the harms differentiating between Bender, 290 F.3d 1285 prohibited under types of conduct Cir.2002)(convicted admitted defendant however, court, not rule that it. The did online, pictures and the that he had traded criminalizes actions related when a statute that he had sent child evidence showed pornography it should be inter- to child images to other users on pornographic knowledge opposed preted require Johnson, line); v. 221 F.3d United States is therefore scant authori- purpose. Tobin (2d that Cir.2000)(finding 98 majority’s interpretation ty for the admitted he occurred where defendant 2G2.4(c)(2) only requires general intent. child over sent and received guid- I am interpreting Internet). In Trafficking has also been plain that the statute’s principle ed only the defendant not down found where language starting point of our inter- is comput child onto his loaded States, Staples v. United 511 pretation. er, pornographic child uploaded but also 600, 605, 114 S.Ct. 128 L.Ed.2d join pornographic U.S. in order to a images Groenendal, language that the of a (1994)(stating website, v. United States (6th Cir.2009), starting point 419, 421, criminal statute is por of a criminal stat- he traded interpretation court’s where defendant admitted ute); Carter, 120 S.Ct. over the Internet and the evi nography 530 U.S. explicit photographs statutory the canons of dence showed he sent (stating agreed to ex- courts to first exam- to another individual interpretation require change agent, images videos with undercover exchange barter or with others. Jordan, 111 Fed.Appx. similarly United States We lack Dyer evidence that (2d Cir.2004). sought engage in an active exchange of images of child pornography with pur- These cases show that in order to find pose to receive images further in return. por- defendant trafficked Moreover, the evidence actually estab- nography, prove must lished that had not traded im- engaged that the defendant in affirmative ages e-mail, over the Internet via chat- exchange por- actions to or barter in child rooms, boards, bulletin or newsgroups. include, nography. These actions for ex- ample, receiving sending pornog- proof Absent that Dyer allowed Lime- Parmelee, raphy. See United States v. keep Wire to images in a shared folder (applying with the purpose of engaging an ex- defendant convicted for of change images, I partake cannot in the where the evidence es- majority’s conclusion that the sentencing tablished that defendant porno- stored properly court applied Spe- graphic images on compact recordable cific intent this case inextricably is which discs he intended to barter with bound to affirmative actions to traffic in services). people programs other view, child pornography. my In use of with knowledge LimeWire of its The facts of automatic this case show file-sharing features and failure to file-sharing application used the LimeWire sharing disable the feature is to download child insufficient pornography; he knew to conclude that Dyer that when were Li- exhibited files downloaded from to traffic absent evidence that program he automatically meWire saved took additional actions to offer the the files in a shared folder that poten- for exchange with users; expectation tially available to other he and he would receive further commodities in failed to remove the files to re- make them turn. sharing. unavailable for It is thus clear Dyer knowingly downloaded child I my also note concern majori- with the pornography through LimeWire and that ty’s equate efforts to intent to share with he understood that LimeWire automatical- to traffic. Although majority ly images saves in a shared folder. But it holding claims is not that mere use of these actions do not show purposely he LimeWire amounts to in child trade, sought to exchange, or barter in pornography, interpretation its child pornography specifically or that he “crucial acts separating possession from engage intended to the sort of activities trafficking involve intent to share that have been held to amount traffick- to others,” of child pornography with threat- ing in child pornography. just ens to do that. While use of a file-

The critical factor to sharing discern whether program may provide circumstan- Dyer traffic, intended to traffic child pornography tial evidence of intent to a finding via LimeWire is not whether he had that there is intent to traffic re- knowledge quires of how knowing LimeWire works more than use of a file- of file-sharing, terms but rather whether sharing program. requires proof It by using por- LimeWire download child the defendant engage intended to in an nography Dyer intended to traffic in said exchange goods of commodities or with the items. lack proof Dyer expectation We used Li- type receive some of com- objective meWire with offering modity in return. The inference that shar- to confront the wit- right Amendment trafficking lowers the is tantamount ing him. against been presented that have nesses the actions threshold of trafficking and leads held to amount liability for traf- of criminal imposition exchanged has not the user

ficking where by barter.

commodities reasons, respectfully I dissent

For these was cor-

from the determination (c)(2). under 2G2.4

rectly sentenced TUCCIO, Plaintiff-Appellant, Edward Clause III. Confrontation Way LLC, Plaintiff, Patriots rejecting majority Finally, join I court re sentencing that the Dyer’s claim v. grand jury testi Agent Lechner’s lied Rudy and Town of MARCONI right of his thereby depriving mony, Ridgefield, Defendant- regarding Agent Lechner to cross-examine Appellees, testimony. We have to grand jury his plain error claim under evaluate this Brosius, Betty Defendant.* Dyer failed to because standard of review Docket No. 07-5493-cv. issue be Clause raise the Confrontation court. United States fore the district Appeals, United States Court (1st González-Castillo, Cir. Second Circuit. 2009). states, majority there is no As the Argued: 2009. Jan. sentencing in the record that the evidence jury grand testi court relied on Lechner’s Dec. 2009. Decided: Dyer to elucidate mony allowing without sentencing. Absent testimony this sentencing

obvious or clear error

court, sentencing claim that right him of to confront deprived

court his jury regarding grand

Agent Lechner fail.

testimony must therefore Conclusions

IV. majority’s conclusion

I from the dissent properly sentenced

that the district court 2G2.4(c)(2). I would

Dyer pursuant 2G2.4(c)(2) requires specific

hold that and that the facts of this

intent to traffic spe- fail exhibited

case to show pornography. in child

cific intent to traffic

I concur the determination not violate Sixth

district court did * parties listing above. to amend of the Court is instructed The Clerk caption case to conform to the official in this

Case Details

Case Name: United States v. Dyer

Court Name: Court of Appeals for the First Circuit

Date Published: Dec 28, 2009

Citation: 589 F.3d 520

Docket Number: 08-1343

Court Abbreviation: 1st Cir.