F IL E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 3, 2007
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-3145
AARON SHAFFER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 04-CR-40146-01-JAR)
Christopher M. Joseph, Joseph & Hollander, P.A., Topeka, Kansas, for Defendant-
Appellant.
James A. Brown, Assistant United States Attorney (Eric F. Melgren, United States
Attorney, and Christine E. Kenney, Assistant United States Attorney, on the brief),
Topeka, Kansas, for Plaintiff-Appellee.
Before MURPHY, McKAY, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
Aaron Shaffer challenges his conviction for distribution and possession of child
pornography, see 18 U.S.C. §§ 2252A(a)(2), 2252A(a)(5)(B), on four grounds. Primary
among these, Mr. Shaffer claims that he did not, as a matter of law or fact, “distribute”
child pornography when he downloaded images and videos from a peer-to-peer computer
network and stored them in a shared folder on his computer accessible by other users of
the network. Mr. Shaffer also asserts that the District Court improperly limited the
testimony of one of his expert witnesses, wrongly admitted certain Fed. R. Evid. 404(b)
evidence, and erroneously instructed the jury. Finding none of these arguments
persuasive, we affirm.
***
Kazaa is a peer-to-peer computer application that allows users to trade computer
files through the Internet. See generally Aplt. App. at 77-78, 80-81, 89-92, 183-84, 384-
86.1 It is hardly a unique service; at any one time today, there are apparently in excess of
four to five million people online sharing over 100 million files. Id. at 90. Users begin at
Kazaa’s website. There, they obtain the software necessary for file trading by clicking an
installation “wizard” 2 that walks them through a step-by-step setup process. Id. at 81-84;
1
As Kazaa’s web site explains: “How Peer-To-Peer (P2P) and Kazaa Software
Works. Kazaa uses peer-to-peer technology. This means that individual users connect to
each other directly, without need for a central point of management. All you need to do is
install Kazaa and it will connect you to other Kazaa users. For example Peter downloads
Kazaa and installs it onto his computer. Mary also has Kazaa installed on her computer.
Peter uses Kazaa to search for a file he is looking for. Kazaa finds the file on Mary’s
computer. Peter can now download the file directly from Mary.” Kazaa,
http://www.kazaa.com/us/help/new_p2p.htm (last visited Dec. 11, 2006).
2
An installation “wizard” is “[a] program that guides a user through a procedure by
means of a sequence of simple on-screen instructions and options.” Oxford English
(continued...)
-2-
see also generally Aple. App. at 27-49. Before installation, the wizard requires users to
acknowledge and accede to Kazaa’s licensing agreement. Aplt. App. at 84; see also Aple.
App. at 31. Users then identify a destination on their computers where they want the
Kazaa file sharing software located, and Kazaa creates a “shortcut” icon on the user’s
desktop. Aplt. App. at 84-85. Upon installation, Kazaa’s software walks users through
certain steps to create a folder called “My Shared Folder” (hereinafter, “shared folder”)
on their computer’s hard drive. Id. at 86-87. Here, Kazaa users store the files they
download from the shared folders of other Kazaa users. Id. at 94, 398-99. At the same
time, anything one has in one’s own Kazaa shared folder may be accessed and
downloaded by other Kazaa users. Id. at 94-95, 398-99.3 The only requisites are that
both users – the one whose files are being transferred as well as the one who is receiving
the files – must be on the Internet and have the Kazaa software application open at the
same time. Id. at 393-94. Kazaa’s software also shows the user in real time exactly how
many of his or her files are being accessed and copied by other Kazaa users. Id. at 87-88.
(...continued)
Dictionary (2nd ed. 1989) (forthcoming March 2006 draft additions), available at Oxford
English Dictionary, http://dictionary.oed.com (enter “wizard” and then follow hyperlink)
(last visited Dec. 12, 2006).
3
As Kazaa explains in its license agreement: “4.4 My Shared Folder. By saving a
file in My Shared Folder, you understand that it will be available for any other user of
Kazaa and compatible programs. These users may find your files and subsequently
download them from you. By doing so your Internet connection is being used.” End
User License Agreements, http://guide.kazaa.com/us/eula.htm (last visited Dec. 11, 2006)
(hereinafter Kazaa Guide).
-3-
A user can, however, select an option that precludes other users from downloading
materials from his or her computer. Id. at 88-89.4
To download an item from another computer’s shared folder, a Kazaa user simply
double clicks on that file, and it is then transferred to the shared folder on the recipient
user’s computer. Aplt. App. at 91. There are only two ways for items to be placed in a
user’s shared folder. First, one must go online, search for an item, and download the
material into the shared folder. Id. at 94. Second, one may take files already existing on
his or her computer and move them into the shared folder. Id. at 94-95. Either way, the
placement of items in one’s shared folder involves a conscious effort. Id. A user can of
course move items out of the shared folder to other folders on his or her computer, and
doing so precludes other Kazaa users from accessing and downloading such material. Id.
at 95.
This case arose when Ken Rochford, an Arizona-based special agent from the
United States Department of Homeland Security’s Bureau of Immigration and Customs
Enforcement (“ICE”), noticed that a certain Kazaa account user with the screen name
shaf@Kazaa had in his shared folder accessible to other Kazaa users a large number of
4
See also Kazaa Guide at 4.4 (“To disable sharing go to Tools->Options->Traffic
and check Disable Sharing. To disable sharing of selected files right click the file in My
Kazaa and select Stop Sharing this file. The Kazaa program is a peer-to-peer program;
this means that it communicates with other peers (other Kazaa or compatible programs).
Other users may download files that you have stored in the My Shared Folder and other
folders you have selected to be shared. Don’t share files which are confidential, such as
financial information, or which you do not have the right to distribute.”).
-4-
files containing images and videos of child pornography. See Aplt. App. at 95-111, 1152-
73. Special Agent Rochford sought to download some of those images from
shaf@Kazaa’s computer onto his own and had no difficulty doing so. Id. at 97-111.
Authorities later learned that the user associated with shaf@Kazaa was Mr.
Shaffer, then a 27-year-old college student living with his mother and stepfather in
Topeka, Kansas. David Zimmer, a Kansas-based ICE special agent, obtained and
executed a search warrant on Mr. Shaffer’s residence and computer. See id. at 204-49.
ICE special agents ultimately found within Mr. Shaffer’s Kazaa shared folder
approximately 19 image files and 25 videos containing child pornography, along with text
documents describing stories of adults engaging in sex with children. See id. at 267, 273-
300; see also Aple. App. at 50-57.
During the course of the search of his home and computer, Mr. Shaffer consented
to an interview with Special Agent Zimmer. See Aplt. App. at 213-15. During that
interview, according to Special Agent Zimmer’s testimony at trial, Mr. Shaffer admitted
to being the sole user of the computer in his home; employing the screen name
shaf@Kazaa; and knowingly downloading through Kazaa 100 movies and 20 still photos
involving child pornography, which he estimated occupied a total of approximately 10
gigabytes. See id. at 220-24, 228-29. Mr. Shaffer defined child pornography for Special
Agent Zimmer as involving prepubescent children as young as six or seven years old. Id.
at 220, 222. Mr. Shaffer further admitted that he stored images of child pornography in
-5-
his Kazaa shared folder. Id. at 223, 226-27. He explained that he did so because, among
other things, Kazaa gave him “user points” and various incentive rewards corresponding
to how many images other users downloaded from his computer. Aplt. App. at 227-28.
Mr. Shaffer indicated he knew that other people had downloaded child pornography from
him. Id. at 228. And he stated that it takes up to 100 hours to download certain files
using Kazaa, so sometimes when he went to work he would leave his computer on in
order to make his images and videos available for download by other users. Id.
Mr. Shaffer also testified at trial. He did not dispute that he gave an interview to
Special Agent Zimmer or much of Special Agent Zimmer’s description of that interview.
See, e.g., id. at 459-61. Mr. Shaffer did testify, however, that he could not recall telling
Special Agent Zimmer that he knew other Kazaa users had downloaded child
pornography from his computer. See Aplt. App. at 460. After a four-day trial, a jury
returned guilty verdicts against Mr. Shaffer for both possession and distribution of child
pornography. Id. at 58. The District Court subsequently sentenced him to 60 months of
incarceration. Id. at 558.
***
1. Mr. Shaffer contends there was insufficient evidence presented at trial to
sustain his conviction for distribution of child pornography.5 Under Section 2252A(a)(2),
it is unlawful for a person knowingly to distribute child pornography by any means,
5
Mr. Shaffer raises no such sufficiency challenge to his possession conviction.
-6-
including by computer.6 Mr. Shaffer frankly concedes that “[h]e allowed, or caused,
distribution by leaving files on his computer that other Kazaa users could access.” Aplt.
Br. at 22. He also now concedes that a rational jury could infer that he did so knowingly
(and even intentionally): “[A] reasonable jury could conclude from this evidence that Mr.
Shaffer intended to allow others to take the material from his computer.” Id. But, Mr.
Shaffer argues, to “distribute” something, a person must actively transfer possession to
another, “such as by mail, e-mail, or handing it to another person.” Id. And here, Mr.
Shaffer contends, he was only a passive participant in the process; there is no evidence
that he “personally complete[d] any [such] transaction.” Id.
The relevant statute does not itself define the term “distribute,” so we look to how
the term is understood as a matter of plain meaning. Black’s offers this definition: “1. To
apportion; to divide among several. 2. To arrange by class or order. 3. To deliver. 4. To
spread out; to disperse.” Black’s Law Dictionary 508 (8th ed. 2005). Webster’s adds this
understanding: “to divide among several or many . . . deal out . . . apportion esp. to
members of a group or over a period of time . . . [allot] . . . [dispense] . . . to give out or
deliver.” Webster’s Third New Int’l Dictionary Unabridged 660 (2002). The instruction
6
“Any person who . . . knowingly receives or distributes . . . any child pornography
[or any material that contains child pornography] that has been mailed, or shipped or
transported in interstate or foreign commerce by any means, including by computer . . .
shall be punished as provided in subsection (b).” 28 U.S.C. § 2252A(a). Though it could
have done so, the government did not charge Mr. Shaffer with the knowing receipt of
child pornography under this statutory provision.
-7-
offered by the District Court to the jury captured much the same sentiment: “To
distribute something simply means to deliver or transfer possession of it to someone
else.”
We have little difficulty in concluding that Mr. Shaffer distributed child
pornography in the sense of having “delivered,” “transferred,” “dispersed,” or
“dispensed” it to others. He may not have actively pushed pornography on Kazaa users,
but he freely allowed them access to his computerized stash of images and videos and
openly invited them to take, or download, those items. It is something akin to the owner
of a self-serve gas station. The owner may not be present at the station, and there may be
no attendant present at all. And neither the owner nor his or her agents may ever pump
gas. But the owner has a roadside sign letting all passersby know that, if they choose,
they can stop and fill their cars for themselves, paying at the pump by credit card. Just
because the operation is self-serve, or in Mr. Shaffer’s parlance, passive, we do not doubt
for a moment that the gas station owner is in the business of “distributing,” “delivering,”
“transferring” or “dispersing” gasoline; the raison d’etre of owning a gas station is to do
just that. So, too, a reasonable jury could find that Mr. Shaffer welcomed people to his
computer and was quite happy to let them take child pornography from it.
Indeed, Mr. Shaffer admitted that he had downloaded child pornography from
other users’ Kazaa shared folders and understood that file sharing was the very purpose of
Kazaa. He admitted that he had child pornography stored in his computer’s Kazaa shared
-8-
folder. Mr. Shaffer could have, but did not, save the illicit images and videos in a
computer folder not susceptible to file sharing. Likewise, he could have, but did not,
activate the feature on Kazaa that would have precluded others from taking materials
from his shared folder. Quite the opposite. According to Special Agent Zimmer, Mr.
Shaffer acknowledged that he knew other people had downloaded child pornography from
his shared folder. Mr. Shaffer cannot recall making this particular admission, but we are
obliged to view the facts in the light most favorable to the government, United States v.
Bush, 405 F.3d 909, 919 (10th Cir. 2005), and the jury was free to credit Special Agent
Zimmer’s testimony and discredit Mr. Shaffer’s. According to Special Agent Zimmer,
moreover, Mr. Shaffer confessed that he kept child pornography in his shared folder in
order to win special concessions from Kazaa, concessions made only when others
downloaded from his shared folder. And Special Agent Rochford had no trouble
whatsoever picking and choosing for download images and videos from Mr. Shaffer’s
child pornography collection.
Though the question how Section 2252A applies to peer-to-peer file sharing
programs may be relatively novel, at least one other court has faced the question we do
today and reached precisely the same conclusion. In United States v. Abraham, the court
held that “the defendant distributed a visual depiction when as a result of the defendant’s
installation of an internet peer-to-peer video file sharing program on his computer, a
Pennsylvania state trooper was able to download the child pornography from the
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defendant’s computer to the trooper’s computer.” No. 05-344, 2006 U.S. Dist. LEXIS
81006 at *22 (W.D. Pa. Oct. 24, 2006) (emphasis added); see also id. at *19-*21 (looking
to dictionary definitions for plain meaning). Courts faced with related issues have, in a
variety of other contexts, issued rulings similarly harmonious with our own. See United
States v. Mathenia, 409 F.3d 1289, 1290 (11th Cir. 2005) (upholding 15-level sentencing
enhancement for, inter alia, distributing child pornography through peer-to-peer file-
sharing groups); United States v. Gunderson, 345 F.3d 471, 473 (7th Cir. 2003)
(affirming 5-level increase in base-offense level for distribution for pecuniary gain; “[a]s
for his argument that he did not engage in distribution because his computer automatically
distributed files, the fact that his computer traded files automatically is irrelevant:
Gunderson is the person who programmed his computer to trade files in this manner”);
State v. Perry, 697 N.E.2d 624, 628 (Ohio 1998) (“Posting software on a bulletin board
where others can access and download it is distribution.”); United States v. Todd, 100
Fed. Appx. 248, 250 (5th Cir. 2004) (unpub.) (user of file-share software who
downloaded child pornography images and “ma[de] them accessible to others” through
file sharing met the definition of “trafficking” for purposes of a sentencing enhancement),
vacated on other grounds, 543 U.S. 1108 (2005) (Booker), judgment reinstated, 158 Fed.
Appx. 526, 527 (5th Cir. 2006).7 In the drug context, too, courts have construed the term
7
Even the Supreme Court has described the users of peer-to-peer networks in terms
of the distribution of files. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545
(continued...)
-10-
“distribution,” as defined by the statute, broadly, see United States v. Jackson, 213 F.3d
1269, 1296 (10th Cir. 2000), vacated and remanded on other grounds, 531 U.S. 1003
(2000), and in fact much more broadly than we need suggest today in the child
pornography context in order to resolve the case now before us. Under narcotics laws,
the term “distribution” has been read to criminalize virtually any “act[ ] perpetrated in
furtherance of a transfer or sale, such as arranging or supervising the delivery, or
negotiating for or receiving the purchase price.” Jackson, 213 F.3d at 1296 (internal
quotation omitted).
2. At trial, Mr. Shaffer proffered a computer expert who sought to opine that,
based upon the file structure of Mr. Shaffer’s computer hard drive, he was on a “porn
fishing expedition with no particular calculation toward any particular type of material,
other than generally sexually explicit material.” Aplt. App. at 366-67. After a Daubert
hearing, see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the District
Court ruled that the proposed testimony went to Mr. Shaffer’s state of mind (mens rea) –
vouching, in essence, that Mr. Shaffer did not mean to seek out or disseminate illegal
7
(...continued)
U.S. 913, —, 125 S.Ct. 2764, 2771 (2005) (“Some musical performers, for example, have
gained new audiences by distributing their copyrighted works for free across peer-to-peer
networks, and some distributors of unprotected content have used peer-to-peer networks
to disseminate files, Shakespeare being an example.”) (emphases added); id. at 2770
(“[P]eer-to-peer networks are employed to store and distribute electronic files by
universities, government agencies, corporations, and libraries, among others.”) (emphasis
added); id. at 2771.
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child pornography. See Aplt. App. at 366-68. As such, the court ruled the proposed
opinion inadmissible, because expert witnesses are “not allowed to testify about the
ultimate [issues] in the case.” Id. at 367.8
Mr. Shaffer argues that the District Court erred in refusing to permit the proffered
testimony. We review the District Court’s decision for abuse of discretion, see United
States v. Turner, 285 F.3d 909, 912 (10th Cir. 2002), and find none. Mr. Shaffer’s expert
sought to suggest to the jury, at the very least by inference, that Mr. Shaffer did not
knowingly possess or distribute unlawful child pornography as opposed to simple adult
pornography. Yet it was precisely this issue that was hotly contested in, and an essential
element of, the crimes with which he was charged. See Aplt. App. at 67-68, 70-72; see
also 18 U.S.C. §§ 2252A(a)(2) (requiring proof that defendant knowingly received or
distributed child pornography), 2252A(a)(5)(B) (requiring proof of knowing possession).
And the Federal Rules of Evidence plainly prohibit an “expert witness . . . [from] stat[ing]
an opinion or inference as to whether the defendant did or did not have the mental state or
condition constituting an element of the crime charged or of a defense thereto.” Fed. R.
Evid. 704(b).
8
The expert also sought, and was permitted, to offer testimony and opinions about
a wide range of other matters, including, inter alia, the possible contamination of Mr.
Shaffer’s hard drive by federal authorities and how computers and Kazaa work. See Aplt.
App. at 68.
-12-
3. Mr. Shaffer suggests that the District Court also erred in admitting evidence
of a written narrative found on his computer entitled “House of Incest.” According to Mr.
Shaffer, because the tale was not a video or photographic image it was protected First
Amendment material irrelevant to the crimes charged, and its admission by the District
Court pursuant to Rule 404(b) of the Federal Rules of Evidence was unduly prejudicial.
As before, our review of this evidentiary decision is confined to ascertaining whether the
District Court abused its discretion.
Mr. Shaffer’s primary trial strategy was (again) to claim that he did not have the
requisite mens rea – that is, he did not knowingly possess or distribute child pornography.
The proffered evidence was offered, and does tend, to rebut this defense. The material
involved a story about adult sex with children. See generally Aplt. App. at 127-31, 141,
286-87. It was on Mr. Shaffer’s computer and in his shared folder accessible to other
Kazaa users. Id. at 134-36. And it had been there for some months at the time his
computer was searched and seized. See id. at 137. The evidence was thus relevant to the
questions of Mr. Shaffer’s mens rea, the presence of a plan to download and share
pornographic materials involving children, and the absence of mistake on his part in
doing so.
On the other side of the ledger, while all probative evidence is prejudicial, as a
written narrative this evidence was surely far less prejudicial than the plethora of macabre
images and films placed before the jury. Indeed, one might say that the “House of Incest”
-13-
story was perhaps the least of Mr. Shaffer’s worries at trial. Even so, the District Court
provided a limiting instruction that the jury was not entitled to use “House of Incest”
evidence for improper propensity purposes. See Aplt. App. at 38-39, 49, 286-88. Given
all these facts and circumstances, we are unable to find any abuse of discretion in the
admission of this piece of evidence.
4. Finally, Mr. Shaffer argues that the District Court erred in instructing the
jury on the distribution count against him. Instructions 10 and 11, offered by Mr. Shaffer,
asked whether he “knowingly . . . distributed” child pornography. Id. at 26-30.
Meanwhile, Instruction 2, proposed by the government, spoke of the question for the jury
as whether Mr. Shaffer “knowingly and intentionally distributed and caused to be
distributed” child pornography. Aplt. App. at 11-12, 17. Thus, somewhat inexplicably,
the government took upon itself the burden of showing (i) an intent to distribute and (ii)
that Mr. Shaffer “caused [child pornography] to be distributed,” despite the fact that
neither are required to prove the crime charged and neither were clearly demanded by Mr.
Shaffer. See 18 U.S.C. § 2252A(a)(2) (requiring proof only of “knowing[] . . .
distribut[ion]”).
On the second day of deliberation, the jury sent the judge the following questions
highlighting the inconsistency between Instructions 2, 10, and 11:
1. What is the legal difference in this instance between intent to
distribute and intent to cause to be distributed?
2. The wording in the instruction #2 Count 1 is that the defendant
intentionally distributed and caused to be distributed. Must we find
-14-
the defendant guilty or innocent of both distributing and causing to
be distributed in order to pass a judgement [sic]?
Aplt. App. at 57; see also id. at 528. Flipping positions, the government urged the
District Court to respond by instructing the jury to focus on the language in Mr. Shaffer’s
Instructions 10 and 11, and not in its own Instruction 2. See id. at 529-31. Mr. Shaffer
protested, asking the District Court to answer the jury’s question by simply referring them
to the instructions as a whole. See id. at 529-31. Following Mr. Shaffer’s suggestion, the
District Court sent the jury the following answer: “The elements of the government’s
burden of proof on Counts 1 and 2 are contained in the instructions, and you should read
and consider the instructions as a whole.” Id. at 57; see also id. 531.
Mr. Shaffer did not enter a contemporaneous objection to the District Court’s
answer to the jury’s question, nor for that matter did he object to the court’s initial
instructions. Now, however, Mr. Shaffer contends that the District Court’s directions
improperly confused the jury on the question whether the government had to prove “that
Mr. Shaffer distributed child pornography, that he caused child pornography to be
distributed, or both.” Aplt. Br. at 19. As he failed to give the District Court an
opportunity to pass on this question, we are constrained to review this newly minted issue
only for plain error. United States v. Duran, 133 F.3d 1324, 1330 (10th Cir. 1998).
We find no error at all. The District Court could well have told the jury simply to
follow Mr. Shaffer’s own instruction under which the government merely had to prove
knowing distribution. Instead, the District Court instructed the jury to look at the
-15-
instructions as a whole, including Instruction 2 which placed additional, non-statutory
obligations on the government – including a higher level of mens rea (intent rather than
knowledge) and something arguably approaching a new element (“caused to be
distributed”). If anything, the District Court’s answer to the jury was needlessly favorable
to Mr. Shaffer, not the other way around. In any event, it was Mr. Shaffer who (in what
was surely a wise tactical move) reversed course and asked the District Court to respond
to the jury by telling it to look at the instructions as a whole rather than focus on his
Instructions 10 and 11. That is to say, if there were any error here (and again we see
none), it would have been purely invited error. See United States v. Visinaiz, 428 F.3d
1300, 1310-11 (10th Cir. 2005) (a party who induces an erroneous ruling may not have it
set aside on appeal).
***
The District Court’s judgment is AFFIRMED.
-16-