The Eleventh Circuit vacated the sentence of Dennis Vadnais, holding that peer-to-peer file sharing of child pornography does not constitute distribution for “a thing of value” to qualify for enhanced sentencing under the federal sentencing guidelines.
The Court held there was no evidence Vadnais ever expected to receive anything of value in exchange for sharing the files.
Vadnais was convicted in the United States District Court for the Southern District of Florida of possession of child pornography. It was alleged that he “shared” pornographic images of children with others via LimeWire’s peer-to-peer file sharing software on his computer. When he downloaded the images, they were immediately accessible by other LimeWire users in his shared folder. Through this shared folder, an investigator accessed the defendant’s pornographic images.
Federal sentencing guidelines applicable to Vadnais’ offense provide for a two-level enhancement when “distribution” is involved. Distribution is defined as “any act . . . related to the transfer of material involving the sexual exploitation of a minor.” Additional enhancements are available when special circumstances are present, specifically a five-level enhancement when the distribution is “for the receipt, or expectation of receipt, of a thing of value.” The “thing of value” can include child pornographic material received in exchange for other child pornographic material.
Vadnais did not dispute that the two-level enhancement was applicable, only that the five-level enhancement did not apply since his distribution was not for the receipt, or expectation of receipt, of a thing of value.
The Eleventh Circuit, in reviewing the District Court’s finding that the five-level enhancement was appropriate, held that “there must be some other evidence, whether direct or circumstantial, that a defendant reasonably believed that he would receive something of value by making his child pornography files available for distribution through a peer-to-peer network.” That evidence must show the connection between the distribution and the receipt or expected receipt of a thing of value.
The use of peer-to-peer file-sharing software alone is not enough to justify the five-level enhancement because it does not establish that the distribution occurred for a specific purpose. In this case, the defendant was not guaranteed to receive anything in exchange for the files he shared. He did leave the sharing option open on his files but that only guaranteed that his files would be distributed—not that he would receive anything in return.
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