Earlier this week, the Tenth Circuit published United States v. Dunn. This is an appeal from child pornography convictions. The decision addressed four issues. The defendant actually wins on three, but suffers a disturbing defeat on the fourth issue.
1. Special Conditions of Supervised Release
We start here because we recently posted on the topic. In fact, we advised not to raise these issues on plain error review, yet the Court vacated a condition in this case on plain error review. The condition at issue required the defendant's participation in probation's CIMP program (Computer Internet and Monitoring). The twist here is that, because the defendant was employed as a computer teacher, the condition was considered an occupational restriction, and, thus, subject to "special scrutiny." Such conditions, if imposed, must apply only "for the minimum time and to the minimum extent necessary to protect the public." District courts must make explicit findings to justify the imposition of occupational restrictions. The district court imposed a 25-year term of supervised release without the necessary findings. The Tenth sent the condition back to the district court for further findings (if reimposed on remand).
The Supreme Court recently decided Paroline v. United States in an attempt to make sense of restitution in child pornography cases. Many think it failed miserably (read the dissent in Paroline). Add Congress to that list, as the Senate just passed legislation to amend the child pornography restitution statute. If this legislation becomes law, Paroline, and this decision, would likely be rendered irrelevant.
Anyway, in Dunn, the district court awarded the full amount of restitution (over $500K) to "Vicky." This is clearly error under Paroline (even the government conceded the point). More importantly, the Court draws a line between harm caused by Vicky's abuser and harms caused by the distribution of her pictures, holding that a child pornography defendant is only responsible for the latter. So, this issue also goes back to the district court for further findings.
3. Double Jeopardy
This one is easy. The defendant was convicted of possession of child pornography and receipt of the same child pornography. In an earlier decision, the Tenth had already declared this a double jeopardy violation. So, in this case, the government conceded error, and the Tenth vacated and remanded to the district court with instructions to vacate one of the convictions.
And we end with a disturbing decision on the meaning of "distribution" in the child pornography context. Around 6 months ago, the Third Circuit published a decision in United States v. Husmann, holding that the mere act of placing child pornography in a shared computer folder, available to other users of a file sharing network, does not constitute distribution of child pornography. Instead, the government must establish that another person actually downloaded or obtained the images. That decision makes all the sense in the world. We do not distribute items simply by making them available to others (think any item with a "free" sign on it; if it is still there at the end of the day, it has not been distributed; it is still there).
Without a word on Husmann, the Tenth reaches the opposite result in this case, holding that the district court did not err in instructing the jury that distribution is nothing more than knowingly making available for sharing electronically image files that he knew depicted child pornography. The Court says that it is bound by a prior case from 2007, United States v. Shaffer, but Shaffer involved actual distribution (according to the opinion, an agent "had no problem" downloading child pornography from the defendant's computer). So Shaffer should not have controlled the outcome of this case. We hope the Tenth, sitting en banc, takes a look at this issue, and if not, the Supreme Court, because the decision, on this one point, cannot be correct.