[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14382 JANUARY 13, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:10-cr-14017-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MARC DENNIS VADNAIS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 13, 2012)
Before EDMONDSON and BARKETT, Circuit Judges, and FULLER,* District
Judge.
*
Honorable Mark E. Fuller, United States District Judge for the Middle District of
Alabama, sitting by designation.
BARKETT, Circuit Judge:
Marc Dennis Vadnais appeals his 240-month sentence imposed after
pleading guilty to knowingly receiving child pornography, in violation of 18
U.S.C. § 2252(a)(2). He argues that the district court erred by applying a five-
level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(3)(B), which provides for the
enhancement if the offense involves distribution of child pornography “for the
receipt, or expectation of receipt, of a thing of value.”1 Vadnais obtained child
pornography through the installation and use of the peer-to-peer file-sharing
software LimeWire. He argues that simply using Limewire does not support a
finding that the distribution of his child pornography files was done for the
purpose of expecting to receive a thing of value in return.
I. Background
For purposes of sentencing, Vadnais admitted that he installed LimeWire’s
peer-to-peer file-sharing software and used it to download the child pornography
files of other LimeWire users to his computer. Once installed, LimeWire’s default
file-sharing setting automatically placed the downloaded files in a shared folder on
his computer, making them available to other LimeWire users. It was through this
1
“We review the district court’s findings of fact for clear error and its application of the
Sentencing Guidelines de novo.” United States v. Newman, 614 F.3d 1232, 1235 (11th Cir.
2010).
2
feature of LimeWire that the government investigator accessed Vadnais’s
pornography files.
The sentencing guidelines applicable to Vadnais’s offense for receipt of
child pornography provides for a two-level enhancement when the offense
involves distribution. U.S.S.G. § 2G2.2(b)(3)(F). Specifically, distribution is
defined by the guidelines as “any act . . . related to the transfer of material
involving the sexual exploitation of a minor.” § 2G2.2, comment. (n.1).
However, the sentencing guidelines provide for greater enhancements when
the distribution involves additional specified circumstances. See U.S.S.G. §
2G2.2(b)(3)(A)-(E). A five-level enhancement may be imposed when the
distribution is “for the receipt, or expectation of receipt, of a thing of value.” §
2G2.2(b)(3)(B). This enhancement is defined as “any transaction, including
bartering or other in-kind transaction, that is conducted for a thing of value, but
not for profit.” § 2G2.2, comment. (n.1). Moreover, a “thing of value” can include
the “child pornographic material received in exchange for other child
pornographic material bartered in consideration for the material received.” Id.
See also United States v. Bender, 290 F.3d 1279, 1286 (11th Cir. 2002) (holding
that “when a defendant trades child pornography in exchange for other child
pornography, the defendant has engaged in distribution for the receipt, or
3
expectation of receipt, of a thing of value,” necessary to impose the five-level
enhancement) (internal quotation marks omitted).
At sentencing, Vadnais did not dispute that he was subject to a two-level
enhancement for distribution of child pornography as a result of the shared folder
on his computer, but argued that these facts did not support the five-level
enhancement for distribution for receipt, or expectation of receipt, of a thing of
value. Accordingly, the issue before us is whether Vadnais’s use of peer-to-peer
file-sharing software to obtain child pornography files from other users in a
manner that permitted other users to obtain child pornography files from his
shared folder supports the application of the five-level enhancement of
§ 2G2.2(b)(3)(B).
II. Discussion
As the Supreme Court has recognized, peer-to-peer networks are “so called
because users’ computers communicate directly with each other, not through
central servers.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S.
913, 919-920 (2005). The software permits users to search for files located in the
shared folder that is created by the software on the computers of other users, and
when found, the requesting user can download the file directly from the computer
located. Id. at 921. “The copied file is placed in a designated sharing folder on
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the requesting user’s computer, where it is available for other users to download in
turn, along with any other file in that folder.” Id. In particular, LimeWire has
been described to function as follows:
LimeWire is a file-sharing program that utilizes “peer-to-peer”
(“P2P”) technology. By employing P2P technology, LimeWire
permits its users to share digital files via an Internet-based network
known as the “Gnutella network.” LimeWire users can share almost
all files stored on their computers with other LimeWire users. When
a LimeWire user wishes to locate digital files available through the
network, she enters search criteria into the search function on
LimeWire’s user interface. LimeWire then scans the computers of
other LimeWire users, to locate files that match the search criteria.
The LimeWire user can download any files that LimeWire locates.
When the user downloads a file, LimeWire transfers a digital copy of
the file from the computer on which it is located to the LimeWire
user’s computer.
Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 398, 410-11 (S.D.N.Y.
2011) (footnote omitted).2 In addition, the district court in Arista Records noted
that LimeWire encourages its users to share files and its “default settings make all
files that a user downloads through LimeWire available to other LimeWire users
2
LimeWire was sued by several major music record companies for copyright
infringement and is currently under a court-ordered injunction in Arista Records which prohibits
it from distributing its software. See LimeWire, http://www.limewire.com (last visited Oct. 12,
2011). This description of LimeWire’s functioning is taken from the district court’s Amended
Opinion and Order on the parties’ motions for summary judgment in that litigation.
5
for download.” Id. at 410 n.6. However, a user may change the default settings.
“[A] user could turn off sharing altogether, designate another folder with a
different name to serve as the “Shared” folder, manually remove files from the
“Shared” folder (or whatever folder had been designated) and prevent them from
being shared on an individual basis.” United States v. Lewis, 554 F.3d 208, 211
(1st Cir. 2009).
Vadnais does not dispute that his use of LimeWire involved distribution
sufficient for the two-level enhancement under § 2G2.2(b)(3)(F) as defined to be
“any act . . . related to the transfer of material involving the sexual exploitation of
a minor.” § 2G2.2, comment. (n.1). This enhancement is based on Vadnais’s
downloading of child pornography files from other LimeWire users which were
automatically placed in his shared folder based on the default file-sharing setting,
and therefore, were retrievable by other LimeWire users.
However, logic compels the conclusion that more must be required for the
five-level enhancement. 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. Such evidence must show the
connection between the defendant’s distribution and the receipt or expectation of
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receipt of a thing of value. As other courts have found, simply using a peer-to-
peer program is not itself sufficient to trigger the five-level enhancement. See
United States v. Durham, 618 F.3d 921, 931 (8th Cir. 2010) (“[W]e have explicitly
rejected any suggestion we automatically apply a [§ 2G2.2(b)(3)(B)] enhancement
based merely on a defendant’s use of a file-sharing program.”); United States v.
Geiner, 498 F.3d 1104, 1111 (10th Cir. 2007) (concluding that the enhancement
does not automatically apply to a defendant who downloads and shares child
pornography via a peer-to-peer network). Indeed, the government concedes that
the use of the peer-to-peer software alone is not enough. Thus, because the five-
level enhancement imposes the additional requirement that the distribution occur
for a specified purpose, we agree that a defendant’s mere installation and use of a
peer-to-peer network to download child pornography into the user’s shared folder
does not as a matter of law support the application of § 2G.2.2(b)(3)(B).
The government essentially argues, and the district court found, that the
necessary evidence for the five-level enhancement showing the intent to receive a
“thing of value” was the fact that Vadnais did not turn off the file-sharing feature,
thus making his files available to others through his shared folder. This failure,
the government argues, demonstrates that Vadnais expected to receive additional
child pornography—a “thing of value”—for sharing his files. This conclusion,
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however, does not follow from the evidence in this case and is not supportable
based on the operation of file-sharing on a peer-to-peer network. Although
LimeWire users can share files, users of this and other peer-to-peer networks are
not obligated to do so in exchange for receiving and downloading files from other
network users. LimeWire (and other peer-to-peer networks) permit so-called
“freeloading”—that is, obtaining files from others without any requirement of
providing files in return. Thus, whether Vadnais changed the default setting to
preclude others from retrieving his files or left his files readily available to others,
the availability of the files of other LimeWire users remained exactly the same to
him. The inference that the district court made—that Vadnais expected to receive
more child pornography because he shared his files—is not supported by the
ordinary operation of the LimeWire file-sharing software. See Geiner, 498 F.3d at
1111 (“[A] defendant who distributes child-pornography files by sharing them on
a file-sharing network does not necessarily do so in exchange for similar files,
particularly when the defendant understands that these files are available even if
he chooses not to share his own.”). Therefore, even presuming that Vadnais knew
about the default share feature3 and intended it to remain enabled so other
3
Vadnais argues that he did not know about the default share setting but that if he had
known about it, he would have disabled it. The government argues, based on circumstantial
evidence, that he was a sophisticated user and thus it was appropriate for the district court to infer
8
LimeWire users could access his files, this only establishes that Vadnais intended
to distribute his files to other LimeWire users. These facts show nothing about
what he expected in return, if anything. As a LimeWire user, because he did not
need to share child pornography to get child pornography, we cannot infer that his
use of the share feature (even if intentional) was done with the expectation of
receiving child pornography. Indeed, assuming Vadnais is the sophisticated
computer user that the government contends, this would support the opposite
inference: that Vadnais had no expectation of receiving any more child
pornography merely by sharing his files because he would have known that he
could download child pornography whether or not the file-sharing feature was
enabled. Therefore, while the facts on this record clearly support the two-level
distribution enhancement, they cannot support the additional inference that the
distribution was for the expectation of receiving a thing of value necessary for the
five-level enhancement.
This is not to say that evidence could never be available in a particular case
to support a finding that a defendant who shared files on a peer-to-peer network
that Vadnais was well aware of the share feature and that he affirmatively chose not to disable
the default setting. As explained herein, however, whether or not Vadnais intended to share his
child pornography files is irrelevant to whether his use of LimeWire, even with the share feature
activated, supports the conclusion that his distribution of child pornography files was for the
receipt or expectation of receipt of a thing of value.
9
did so with the expectation of receiving a “thing of value” in return. For example,
the Tenth Circuit found that the five-level enhancement was warranted in a case
where there was direct evidence that the defendant shared his files only after he
came to believe that doing so would allow him to download child pornography
from other users at a faster speed. The court explained that although the
defendant’s sharing of files did not support a finding that he expected more child
pornography in return, it did show that he expected faster download speed, which
the court concluded was a “thing of value.” See Geiner, 498 F.3d at 1110 (“In
other words, [the defendant] made his files available to others on the network in
anticipation of a faster downloading speed.”). Here, however, the government
presented no evidence, nor do we find any on this record, that Vadnais expected to
receive any other “thing of value.”
Accordingly the district court clearly erred in applying the five-level
enhancement for distribution for the expectation of the receipt of a thing of value.
We, therefore, vacate Vadnais’s sentence and remand to the district court for re-
sentencing consistent with this opinion.
SENTENCE VACATED and REMANDED FOR RE-SENTENCING.
10