US v. Dyer

Filing 920091228

Opinion

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var WPFootnote1 = '                   Of the Seventh Circuit, sitting by designation.\
'

var WPFootnote2 = '                   The government also charged Dyer with transportation of\
child pornography but ultimately asked the trial judge to dismiss\
this count.\
'

var WPFootnote3 = '                   Specifically, the PSR calculated a two-level enhancement\
for materials involving a prepubescent minor, another two-level\
enhancement for possession involving the use of a computer, a four-level enhancement for possession of images involving sadism and\
masochism, and a five-level enhancement for possession of over 600\
images. The PSR also adjusted for Dyer\'s acceptance of\
responsibility, resulting in a final offense level of 25.\
'

var WPFootnote4 = '                   Dyer also contested the recommended enhancements for \
possession of sadistic images and for possession of more than 600\
images. He does not, however, challenge these enhancements, which\
the court applied, on appeal.\
'

var WPFootnote5 = '                   Subsequent amendments to the Guidelines consolidated\
these offenses into a single subsection, with provisions for\
sentencing enhancements and reductions depending upon the extent to\
which a defendant\'s conduct went beyond mere possession. See\
U.S.S.G. § 2G2.2 (2004) (Trafficking in Material Involving the\
Sexual Exploitation of a Minor; Receiving, Transporting, Shipping,\
Soliciting, or Advertising Material Involving the Sexual\
Exploitation of a Minor; Possessing Material Involving the Sexual\
Exploitation of a Minor with Intent to Traffic; Possessing Material\
Involving the Sexual Exploitation of a Minor).\
'

var WPFootnote6 = '                   While Jordan was an unpublished Second Circuit opinion,\
we consider it to be persuasive authority since it squarely\
addressed the same argument made by the defendant in the present\
appeal. See Sec. Ins. Co. of Hartford v. Old Dominion Freight\
Line, Inc., 314 F. Supp. 2d 201, 203 n.1 (S.D.N.Y. 2003) (treating\
Second Circuit unpublished opinions "at least" equivalent in\
authority to law review notes).\
'

var WPFootnote7 = '                   As we observed in Morales-De Jesús, we consider the\
legislative history and the congressional findings of prior\
iterations of the Act relevant to its present meaning, since "when\
Congress previously passed related legislation accompanied by\
applicable findings, subsequent legislation was \'presumably based\
on similar findings and purposes with respect to the areas newly\
covered.\'" 372 F.3d at 10 n.2 (quoting Maryland v. Wirtz, 392 U.S.\
183, 190 n.13 (1968)).\
'

var WPFootnote8 = '                   One circuit has also held that 18 U.S.C. § 115(a)(1)(B),\
which prohibits threats of assault, kidnaping, or murder against\
federal officials, judges, and law enforcement officers "with\
intent to" inhibit their official duties or "with intent to"\
retaliate against them, is a general or specific intent crime. See\
United States v. Ettinger, 344 F.3d 1149, 1156 (11th Cir. 2003);\
but see United States v. Veach, 455 F.3d 628, 631-32 (6th Cir.\
2006) (requiring specific intent); United States v. Stewart, 420\
F.3d 1007, 1017 (9th Cir. 2005) (same).\
'

var WPFootnote9 = '                   While we have recognized that the crime of possession of\
a controlled substance with intent to distribute requires proof\
that the defendant specifically and purposefully intended to\
traffic in drugs, that conclusion resulted from statutory language\
that includes the phrase "knowingly or intentionally" and by\
concerns with overbreadth. See, e.g., United States v. Hassan, 542\
F.3d 968, 979 (2d Cir. 2008); United States v. Caseer, 399 F.3d\
828, 839 (6th Cir. 2005). Both of those concerns are inapplicable\
in the present context. \
'

var WPFootnote10 = '                   We have previously discussed LimeWire\'s functions at\
length. LimeWire "is a peer-to-peer file sharing application that\
connects users who wish to share data files with one another." \
Lewis, 554 F.3d at 211. When a user downloads LimeWire, the\
program creates a new folder on his computer where any files\
downloaded from LimeWire will be saved. LimeWire designates this\
as a "shared" folder, meaning that its contents will automatically\
be available to other users. Users can locate and download these\
files free of charge by entering search terms describing the\
desired content. When a user downloads a copy of the file,\
LimeWire saves it in the user\'s "shared" folder. Id. at 211. \
'

var WPFootnote11 = '                   Moreover, these facts would be sufficient for us to find \
an intent to traffic even if § 2G2.4(c)(2) were read to require\
specific intent. Dyer\'s long-term, purposeful use of LimeWire, his\
deliberate failure to turn off the file-sharing function, and his\
awareness that other users could download child pornography from\
his "shared" folder could reasonably be found to amount to a\
specific intent to share these images with other users, not just\
knowledge that such a result was the likely consequence of his\
actions.\
'

var WPFootnote12 = '                   The majority underscores the fact that the sentencing\
court never interpreted the term intent within the purview of\
§ 2G2.4 (c)(2). The majority also concludes that the district\
court did not plainly err when it concluded that Dyer\'s actions met\
the Guideline\'s intent requirements. In so concluding, the\
majority assumes that the district court inferred a general intent\
requirement from § 2G2.4(c)(2). However, in my view, the\
government\'s failure to argue that general intent suffices in this\
case, reveals that the district court interpreted § 2G2.4(c)(2) in\
light of Dyer\'s argument that he lacked actual or specific intent\
to traffic. The district court therefore did not hold, as the\
majority does today, that general intent suffices to sentence Dyer\
under § 2G2.4(c)(2).\
'

var WPFootnote13 = '                   The majority argues that the distinction between specific\
and general intent is not critical in this case because we are not\
concerned with defining the elements of a crime to separate\
wrongful and innocent conduct. The majority further suggests that\
the leeway sentencing judges enjoy in considering past uncharged\
conduct bolsters the conclusion that general intent satisfies the\
mens rea required by § 2G2.4(c)(2). I fail to ascertain why we\
should disregard the distinction between specific and general\
intent when we interpret the mens rea established by the Sentencing\
Guidelines. This distinction is crucial in this case because the\
less culpable conduct of possession bleeds into the more serious\
conduct of trafficking on the basis of criminal intent. Bearing in\
mind that our interpretative task in this case requires us to tread\
the waters of the "relation between some mental element and\
punishment for a harmful act," Morissette v. United States, 342 \
U.S. 246, 250-51 (1952), it is crucial to carefully scrutinize the\
level of culpability the Sentencing Guidelines prescribe.\
'

var WPFootnote14 = '                   The majority errs when it relies on the Eighth Circuit\'s\
decision in United States v. Gantos, 817 F.2d 41, 42-43 (8th Cir.\
1987) to argue that specific intent is not ordinarily a\
prerequisite in criminal offenses. The Court in Gantos reviewed a\
specific intent instruction that defined specific intent as\
requiring evidence that the defendant knew that his act violated\
the law and that he purposely intended to violate the law. Relying\
on the general principle that ordinarily knowledge that an act\
violates the law is not an essential element of the offense,\
Gantos, 817 F.2d at 43, and mindful of the fact that the criminal\
law does not require knowledge that an act is illegal, wrong, or\
blameworthy, United States v. Baker, 807 F.2d 427, 429 (5th Cir.\
1986)(citation omitted), the Gantos court rejected the proposed\
specific intent instruction. The court thus rejected the proposed\
instruction on the basis that the statute in controversy did not\
require knowledge or purpose to violate the law. But contrary to\
the majority\'s assertion, the Gantos court did not hold that\
specific intent is not ordinarily required in criminal offenses.\
'

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