United States v. William Conner , 521 F. App'x 493 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0365n.06
No. 12-3210
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA ) Apr 11, 2013
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
WILLIAM CONNER ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
)
)
Before: GIBBONS, KETHLEDGE, and STRANCH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. A jury convicted William Conner of four
counts of receipt of visual depictions of child pornography and one count of possession of child
pornography. The district court sentenced him to 360 months in prison. Conner argues on appeal
that the district court erred by concluding that he did not have a reasonable expectation of privacy
in files he made publicly available on the LimeWire “peer-to-peer” file-sharing service and finding
that Conner’s crimes “involved . . . distribution” under the Sentencing Guidelines because of his use
of LimeWire. For the following reasons, we affirm the district court’s judgment.
I.
A.
LimeWire is a computer file-sharing program that any user could download for free over the
Internet at the time the events in this case took place. As the Ninth Circuit recently explained,
-1-
United States v. Conner
No. 12-3210
LimeWire and similar programs connect network participants directly and allow them
to download files from one another. To download a file, a LimeWire user opens the
application and inputs a search term. LimeWire then displays a list of files that match
the search terms and that are available for download from other LimeWire users.
When a user downloads a file using the LimeWire network, he or she causes a digital
copy of a file on another user’s computer to be transferred to his or her own
computer.
United States v. Flyer, 633 F.3d 911, 913 (9th Cir. 2011) (citation omitted). This ability to download
a file directly from another user’s personal computer is known as “peer-to-peer” file sharing.
By default, LimeWire stores downloaded files in a “shared” folder that is searchable by other
LimeWire users. The user can change this default setting or manually move files out of the “shared”
folder if he does not wish to share files. LimeWire users can also view the internet protocol (“IP”)
address of the computer from which they are downloading files. The IP address is a unique identifier
assigned by an Internet service provider (“ISP”) to a subscriber that can be used to determine the
physical location of the subscriber if cross-referenced with the ISP’s records. In addition, each
installation of LimeWire is assigned a global unique identifier number (“GUID”) that other
LimeWire users can view. If one household has multiple computers that have installed LimeWire,
the GUID can be used to determine which computer in the household is sharing a particular file.
B.
Marcus Penwell, a Franklin County Sheriff’s Department deputy and a member of the
county’s multi-jurisdictional Crimes Against Children Task Force, used LimeWire on a daily basis
to monitor child pornography possession and distribution. His work computer had a modified
version of LimeWire that automatically searched for files bearing names associated with child
pornography, but the modified software did not provide him with greater access to the files of
-2-
United States v. Conner
No. 12-3210
LimeWire users than a standard user would have. On September 12, 2010, Penwell identified a
computer connected to LimeWire that was making “hundreds of files with titles indicative of child
pornography” available for download. Penwell connected to the computer, downloaded some of the
files, and found that they contained child pornography. He recorded the IP address and GUID of the
computer in question and sent a subpoena to Insight Communications (“Insight”), the ISP that issued
the IP address, to determine the location of the computer sharing the files. Insight provided Penwell
with the address of Bobby Lawwell. Penwell successfully accessed files from this computer a
second time on October 24, 2010, and obtained a warrant to search Lawwell’s home based on the
files and the information provided by Insight on November 4.
When Penwell and a team of sheriff’s deputies arrived at the residence to execute the warrant
on November 5, Lawwell met them at the front door of the house. She explained that she lived in
the house with her children, and that Conner, her uncle, lived in an apartment in the garage at the rear
of the residence. The deputies found Conner in the garage apartment, and he permitted them to walk
through it to perform a protective sweep. They observed a desktop computer and monitor in the
apartment. While other deputies stayed at the residence, Penwell obtained a second warrant to search
the apartment due to concern that the separate residence would not be covered by the initial warrant.
Penwell returned to the house later that day to execute the new search warrant.
Deputies retrieved Conner’s computer and numerous compact disks from the apartment. A
forensic search of these items revealed numerous child pornography images. The forensic
examination also indicated that the day before the deputies executed the search warrant, Conner
reinstalled the operating system on his computer. This process confined the child pornography files
-3-
United States v. Conner
No. 12-3210
to “unallocated” space on the computer’s hard drive that is inaccessible to most users, although this
space can be accessed with advanced computer forensic tools used by criminal investigators. The
examination also confirmed that Conner had been using LimeWire to obtain and share child
pornography. The file paths of many of the images found on the computer indicated that Conner
downloaded them from LimeWire and that they were stored in folders searchable by other LimeWire
users. In addition, the GUID of the version of LimeWire installed on the computer matched the
GUID of the computer from which Penwell downloaded child pornography.
Lawwell also told the deputies that Conner’s daughter and ex-girlfriend had accused him of
sexual molestation. Penwell arranged to meet with the two women on November 11, 2010. The
daughter told Penwell that Conner had repeatedly raped her between the ages of five and nine years
old and had made a pornographic video of her using a VHS video camera when she was six years
old. Penwell again contacted Lawwell, and Lawwell confirmed that Conner had VHS recording
equipment and tapes in his apartment. Penwell obtained another search warrant, and sheriff’s
deputies seized a cache of VHS tapes in Conner’s apartment. Among the tapes seized was a
pornographic video of Conner’s daughter that matched the description she gave to Penwell.
C.
The government charged Conner with four counts of receipt of visual depictions of child
pornography, 18 U.S.C. § 2252(a)(2), (b)(1), and one count of possession of child pornography, 18
U.S.C. § 2252(a)(4)(B). The visual-depictions counts related to images Conner downloaded from
LimeWire, while the possession count addressed the video Conner made of his daughter. Conner
made numerous pre-trial motions, but the only motion relevant to this appeal is his motion to
-4-
United States v. Conner
No. 12-3210
suppress evidence. He argued that Penwell’s use of LimeWire constituted an unlawful, warrantless
“search” under the Fourth Amendment and that the court should suppress all evidence seized as a
result of that search. After an evidentiary hearing in which Penwell and Dan Johnson, a computer
forensic examiner working for the sheriff’s department, gave testimony, the district court denied
Conner’s motion. Conner waived his right to counsel after the court denied the suppression motion
and represented himself at trial. A jury found Conner guilty of all five counts in the superseding
indictment.
Prior to his sentencing hearing, Conner reasserted his right to counsel. The pre-sentence
report prepared for Conner calculated an offense level of 42, including a two-point enhancement for
an offense that “involved . . . [d]istribution” under Sentencing Guideline § 2G2.2(b)(3)(F). Conner
objected to this enhancement. He also argued that he should receive a two-level reduction in his base
offense level under section 2G2.2(b)(1) of the Guidelines. The district court overruled the objections
during Conner’s sentencing hearing and sentenced Conner to a within-Guidelines sentence of 360
months in prison—240 months for the visual-depictions counts and 120 months for the possession
count, to be served consecutively.
II.
When a defendant appeals the denial of a suppression motion, this court reviews the district
court’s factual findings for clear error and its legal determinations de novo. United States v. Martin,
526 F.3d 926, 936 (6th Cir. 2008). “A factual finding will only be clearly erroneous when, although
there may be evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v. Navarro-
-5-
United States v. Conner
No. 12-3210
Camacho, 186 F.3d 701, 705 (6th Cir. 1999). Because the government prevailed in the district court,
this court must “consider the evidence in the light most favorable to the government.” United States
v. Campbell, 549 F.3d 364, 370 (6th Cir. 2008).
Conner asks us to find that he had a “legitimate expectation of privacy” in the images he
made available for sharing on LimeWire. In order to do so, we must answer two questions in the
affirmative:
First, we ask whether the individual, by his conduct, has exhibited an actual
expectation of privacy; that is, whether he has shown that “he [sought] to preserve
[something] as private.” . . . Second, we inquire whether the individual’s expectation
of privacy is “one that society is prepared to recognize as reasonable.”
Bond v. United States, 529 U.S. 334, 338 (2000) (alterations in original) (quoting Smith v. Maryland,
442 U.S. 735, 740 (1979)). Conner’s argument fails because his expectation of privacy is not “one
that society is prepared to recognize as reasonable.”
Generally speaking, computer users have a reasonable expectation of privacy in data stored
on a home computer. Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001). Conner argues that under
United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (en banc), third-party access to information
on one’s computer is consistent with a reasonable expectation of privacy in that information. In
Warshak, we agreed that the government could not compel a commercial ISP to turn over the
contents of a subscriber’s e-mails without a warrant because subscribers “enjoy[] a reasonable
expectation of privacy in the contents of emails,” even though an ISP has the ability to view the
contents of e-mail prior to delivery. 631 F.3d at 288. In the context of e-mail, ISPs are “the
functional equivalent of a post office or a telephone company,” and like an ISP, both of these entities
have the ability to intrude on the contents of messages in the course of delivering them to their
-6-
United States v. Conner
No. 12-3210
intended recipients. Id. at 286. Since the right or ability of third parties to intrude on phone calls
and letters has not been deemed sufficient to defeat a reasonable expectation of privacy in those
modes of communication, we agreed that “it would defy common sense to afford emails lesser
Fourth Amendment protection” than telephone calls or letters. Id. at 285–86.
Warshak does not control this case because peer-to-peer file sharing is different in kind from
e-mail, letters, and telephone calls. Unlike these forms of communication, in which third parties
have incidental access to the content of messages, computer programs like LimeWire are expressly
designed to make files on a computer available for download by the public, including law
enforcement. Peer-to-peer software users are not mere intermediaries, but the intended recipients
of these files. Public exposure of information in this manner defeats an objectively reasonable
expectation of privacy under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 351
(1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection.”); see also California v. Greenwood, 486 U.S. 35, 40–41
(1988) (finding no reasonable expectation of privacy in “plastic garbage bags left on or at the side
of a public street,” which are accessible by “members of the public” and left on the curb “for the
express purpose of conveying [them] to a third party, the trash collector”).
Conner responds that he did not know the files he downloaded from LimeWire would be
publicly accessible. To prove this point, he emphasizes efforts he made to keep these files private
by moving them to compact disks and reinstalling his operating system on the computer to “wipe[]
the hard drive clean.” But these efforts only prove that he was ineffective at keeping the files he
downloaded from LimeWire from being detected. They do not establish that he was unaware of a
-7-
United States v. Conner
No. 12-3210
risk of being discovered. As the Ninth Circuit observed when confronted with a similar argument,
Conner’s “subjective intention not to share his files d[oes] not create an objectively reasonable
expectation of privacy in the face of [the] widespread public access” to his files LimeWire created.
United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir. 2010) (rejecting Fourth Amendment privacy
claim of defendant who unsuccessfully attempted to use LimeWire’s privacy features “to prevent
others from downloading or viewing the names of files on his computer”).
Furthermore, Conner’s assertions of ignorance are not supported by the record. Penwell
downloaded images from Conner’s computer twice over a month-long period, meaning that the
images were available on Conner’s computer for a significant period of time. Conner’s sister,
Sandra Conner-Lewingdon, testified at trial that Lawwell had shown her and Conner how to use
LimeWire to search for music files being shared by other users. The forensic examination of
Conner’s computer confirmed that he was using LimeWire to download child pornography images
from other users and storing those images in files used for sharing over LimeWire. The sheer
number of files that were available for download—“hundreds,” according to Penwell—belies
Conner’s purported ignorance in how the software worked. Finally, Conner concedes that while he
made an effort to take some files off of his computer, he took no affirmative steps to limit the ability
of other LimeWire users to access the files in his folder, despite a reasonably high level of
competency with computers. “To argue that [Conner] lacked the technical savvy or good sense to
configure LimeWire to prevent access to his pornography files is like saying that he did not know
enough to close his drapes,” and the district court did not err by rejecting Conner’s assertions of
ignorance. United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008).
-8-
United States v. Conner
No. 12-3210
Sister circuits that have taken up this question uniformly hold that there is no reasonable
expectation of privacy in files the government obtained using peer-to-peer sharing services like
LimeWire. United States v. Stults, 575 F.3d 834, 843 (8th Cir. 2009) (“One who gives his house keys
to all of his friends who request them should not be surprised should some of them open the door
without knocking.”); Ganoe, 538 F.3d at 1127; United States v. Perrine, 518 F.3d 1196, 1205 (10th
Cir. 2008). In line with these opinions, we agree that the district court properly declined to suppress
the files Penwell downloaded from Conner’s computer and the fruits of the investigation that
emanated from those files.
III.
A district court’s sentencing decision is reviewed for both procedural and substantive
reasonableness. United States v. Bolton, 669 F.3d 780, 781 (6th Cir. 2012). Conner challenges the
calculation of his offense level under the Sentencing Guidelines, which implicates procedural
reasonableness. This court reviews the district court’s factual findings on sentencing issues for clear
error and its legal interpretation of the Sentencing Guidelines de novo. United States v. Brown, 579
F.3d 672, 677 (6th Cir. 2009). When courts interpret the Guidelines, they may apply “the traditional
canons of statutory interpretation.” United States v. Jackson, 635 F.3d 205, 209 (6th Cir. 2011).
The Sentencing Guidelines for child pornography offenses mandate a two-level increase in
the offense level if the offense conduct “involved . . . [d]istribution.” U.S. Sentencing Guidelines
Manual § 2G2.2(b)(3)(F). They also allow for a two-level reduction to the base offense level if
section 262.2(a)(2) applies and if “the defendant’s conduct was limited to the receipt or solicitation
of material involving the sexual exploitation of a minor” and “the defendant did not intend to traffic
-9-
United States v. Conner
No. 12-3210
in, or distribute, such material.” Id. § 2G2.2(b)(1). Conner raises two issues relating to these
provisions on appeal. First, he argues that the “distribution” enhancement does not apply to him.
Second, he asserts that because he “did not intend to traffic in, or distribute,” child pornography, the
district court should have awarded him a two-level reduction. Both claims lack merit.
A.
A defendant’s offense conduct “involve[s] . . . distribution” under section 2G2.2(b)(3)(F)
when it involves
any act, including possession with intent to distribute, production, transmission,
advertisement, and transportation, related to the transfer of material involving the
sexual exploitation of a minor. Accordingly, distribution includes posting material
involving the sexual exploitation of a minor on a website for public viewing but does
not include the mere solicitation of such material by a defendant.
Id. § 2G2.2 cmt. 1. Conner argues that the government had to prove he either intended to distribute
child pornography or knew he would be sharing images with others by using LimeWire. The
government argues that it only needs to prove Conner knowingly used LimeWire because the
capability of the software to share files with others is self-evident.
The definition of “distribution” provided by the Guidelines is silent as to the requisite state
of mind with which the “act . . . related to the transfer of material” must be conducted. In the context
of a criminal statute, this silence would permit the court to imply that the defendant must commit
such an act knowingly. See United States v. X-Citement Video, Inc., 513 U.S. 64, 71–72 (1994)
(noting that courts may “presume a scienter requirement in the absence of express contrary intent”
when interpreting statutes “akin to the common-law offenses against the ‘state, the person, property,
or public morals’” (quoting Morissette v. United States, 342 U.S. 246, 255 (1952))). While a
- 10 -
United States v. Conner
No. 12-3210
presumption of “knowing” conduct is not always warranted when interpreting the Guidelines, it is
appropriate here. “Distribution” of contraband is “akin to common-law offenses,” and as such, a
defendant should have to knowingly perform an “act . . . related to the transfer of material” to trigger
this enhancement. The example at the end of the Guideline’s definition of “distribution” confirms
this reasoning, since a defendant who “post[s] material . . . on a website for public viewing”
performs a knowing act. We agree with the government’s position that a knowing “act . . . related
to the transfer of material” is sufficient to satisfy section 2G2.2(b)(3)(F).
Conner argues that the Guidelines require proof of an “intent to distribute,” but the language
of section 2G2.2(b)(3) does not support his position. The offense conduct only needs to “involve[]
. . . distribution” for the enhancement to apply, and “distribution” is any act “related to the transfer
of material.” This reading is confirmed by the subparagraphs immediately preceding section
2G2.2(b)(3)(F), which permit greater increases in a defendant’s offense level if the government can
prove a specific motivation behind distribution, including distribution “for pecuniary gain,”
distribution “for the receipt . . . of a thing of value,” and distribution “to a minor that was intended
to persuade . . . the minor to engage in prohibited sexual conduct.” U.S. Sentencing Guidelines
Manual § 2G2.2(b)(3)(A), (B), (E). The absence of a similar intent requirement for all crimes that
merely “involve[] . . . distribution” leads to the conclusion that it is inappropriate to read an “intent
to distribute” requirement into section 2G2.2(b)(3)(F). See Nolfi v. Ohio Ky. Oil Corp., 675 F.3d
538, 553 (6th Cir. 2012) (observing that when a statute includes a requirement in one section, and
excludes it in a neighboring section, the canon of expressio unius est exclusio alterius permits the
inference that the neighboring section does not impose the requirement).
- 11 -
United States v. Conner
No. 12-3210
We agree with the government that knowing use of LimeWire, much like the posting of a file
on a website, is sufficient to trigger section 2G2.2(b)(3)(F)’s two-level enhancement. Bolton, 669
F.3d at 781–83 (applying this standard without expressly adopting it); United States v. Dodd, 598
F.3d 449, 451–53 (8th Cir. 2010); United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009); United
States v. Carani, 492 F.3d 867, 876 (7th Cir. 2007); United States v. Todd, 100 F. App’x 248, 250
(5th Cir. 2004), vacated on other grounds, 543 U.S. 1108 (2005). While defendants in some of these
cases have argued that they had “no knowledge that [their] computer[s] [were] equipped to
distribute” child pornography, courts have not required the government to prove such knowledge.
Dodd, 598 F.3d at 452. “[T]he purpose of a file sharing program is to share, in other words, to
distribute,” and knowing use of such a program qualifies as conduct that “involve[s] . . .
distribution.” Id.
Unique among courts that have addressed this issue, the Eighth Circuit has held that the
presumption that users of peer-to-peer software understand they are sharing files with others can be
rebutted by the defendant. The Dodd court recognized that “[a]bsent concrete evidence of
ignorance—evidence that is needed because ignorance is entirely counterintuitive—a fact-finder may
reasonably infer that the defendant knowingly employed a file sharing program for its intended
purpose.” Id. In United States v. Durham, 618 F.3d 921 (8th Cir. 2010), the Eighth Circuit relied
on this language to reverse a district court’s imposition of the “distribution” enhancement on a
defendant that used peer-to-peer software. The defendant in Durham showed that another person
had installed file-sharing software on the defendant’s computer. 618 F.3d at 932. Moreover, he
demonstrated that he did not know how to use the program and “was not knowledgeable regarding
- 12 -
United States v. Conner
No. 12-3210
the program’s capabilities.” Id. The court found that these extenuating circumstances comprised
“concrete evidence of ignorance” under Dodd. Id. at 928–32; but see id. at 937–43 (Gruender, J.,
concurring in part, dissenting in part, and announcing the judgment of the court in part) (criticizing
the majority’s application of Dodd). No other circuit has taken up the issue of whether the section
2G2.2(b)(3)(F) enhancement is automatically imposed when a defendant knowingly uses peer-to-
peer software, or if the defendant can rebut the presumption that he understood how the software
worked by presenting “concrete evidence of ignorance.” In Bolton, this court distinguished Durham
from cases out of the Fourth and Seventh Circuits, but did not recognize the defense outlined in
Durham because the defendant did not present evidence of ignorance that would allow him to invoke
it. Bolton, 669 F.3d at 782–83.
Conner argues that we should follow Durham and reverse the district court’s imposition of
the section 2G2.2(b)(3)(F) enhancement. But like the defendant in Bolton, Conner cannot point to
“concrete evidence of ignorance” in the record that would raise the issue the Durham court
confronted. He argues that “the government did not develop the record in any way sufficient to
demonstrate any knowledge on Conner’s part that files he downloaded to his hard drive would be
accessible to others,” even though Durham places the burden of introducing evidence on the
defendant. Durham, 628 F.3d at 931 (“[U]nless a defendant presents ‘concrete evidence of
ignorance,’ the fact-finder may reasonably infer the defendant utilized a file-sharing program to
distribute files.” (emphasis added)). It is not relevant that the government may have had better
evidence in Bolton of the defendant’s understanding of the operation of peer-to-peer software than
it does in this case. See Bolton, 669 F.3d at 781 (noting that defendant had removed file-sharing
- 13 -
United States v. Conner
No. 12-3210
software from his girlfriend’s computer and read “multiple . . . advisories” about the operation of
such software prior to installing it on his computer) (internal quotation marks omitted). Finally, the
only evidence on this topic that is in the record points in the government’s favor. Conner’s sister
testified that Lawell had shown her and Conner how to use LimeWire. Conner made “hundreds” of
files available for download, and the forensic computer examiner found numerous child pornography
files on Conner’s computer with file paths indicating the images were downloaded from and being
shared on LimeWire.
Since the record only bolsters the sound presumption that users of file-sharing software
understand others can access their files, the district court properly imposed the section
2G2.2(b)(3)(F) enhancement in this case. As in Bolton, we do not reach the issue of whether the
Eighth Circuit’s Dodd / Durham rule applies in this circuit.
B.
Conner also argues that the court should have reduced his offense level by two levels under
section 2G2.2(b)(1) of the Guidelines. See Durham, 618 F.3d at 932 (ordering the district court to
consider this reduction after concluding the section 2G2.2(b)(3)(F) enhancement was inappropriate).
This reduction is inappropriate because Conner’s offense conduct also involved sexual exploitation
of minors and was therefore not “limited to the receipt or solicitation” of child pornography.
Accordingly, the district court properly denied Conner’s request for a reduction in the offense level.
IV.
For these reasons, we affirm the judgment of the district court.
- 14 -