United States v. Timothy Ryan , 885 F.3d 449 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-4048
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY RYAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 15-cr-62 — Robert L. Miller, Jr., Judge.
____________________
ARGUED NOVEMBER 6, 2017 — DECIDED MARCH 13, 2018
____________________
Before BAUER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Timothy Ryan was convicted of pos-
sessing, receiving, and distributing child pornography. On
appeal, he contends that his motion for substitution of coun-
sel should have been granted and that the government failed
to prove he knowingly distributed the files. He also argues his
computer was improperly forfeited. For the reasons that fol-
low, the judgment of the district court is affirmed.
2 No. 16-4048
I. BACKGROUND
Illinois police used a peer-to-peer file sharing program to
download child pornography from a computer located at
Timothy Ryan’s home. The Federal Bureau of Investigation
then obtained a warrant, searched Ryan’s home, and found a
desktop computer that contained two peer-to-peer file shar-
ing programs that had been used to download hundreds of
child pornography files. The FBI also discovered on the com-
puter a shortcut to a program used to block user-specific IP
addresses from seeing the user’s peer-to-peer activity or
shared files, a list of what appeared to be law enforcement IP
addresses, a shortcut to a program that encrypts peer-to-peer
communications, and a folder with many images and videos
of child pornography.
Presented with this evidence, a grand jury indicted Ryan
for possessing, receiving, and distributing child pornogra-
phy. The indictment also sought forfeiture of unspecified
property.
Ryan rejected a plea offer made by the government and
invoked his right to trial by jury. Five days before trial was set
to begin, defense counsel filed on Ryan’s behalf a motion to
substitute counsel. The following day, the district court held
a hearing on the motion. The prosecutor, defense counsel, and
Ryan were present. Ryan testified that he had lost confidence
in counsel and was frustrated with his inability to contact
him. After discussing the matter with defense counsel and
with Ryan, the court denied the motion.
At trial, Ryan claimed the images must have been down-
loaded by his cousin who had access to his computer. The jury
returned guilty verdicts convicting Ryan on all counts. The
No. 16-4048 3
court sentenced Ryan to 157 months’ imprisonment, includ-
ing an enhancement for knowingly distributing child pornog-
raphy. The district court also ordered the forfeiture of Ryan’s
computer.
II. ANALYSIS
Ryan now appeals his convictions on the basis his motion
for substitution of counsel should have been granted. He also
appeals the distribution conviction on grounds that the gov-
ernment failed to adequately prove he knowingly distributed
the files. He challenges his sentence on this basis as well. Fi-
nally, he challenges the forfeiture of his computer.
A. Motion for substitution of counsel
Five days before trial was to begin, Ryan filed a motion for
substitution of counsel. After a hearing, the district court de-
nied the motion. We review the denial for abuse of discretion.
United States v. Volpentesta, 727 F.3d 666, 672–73 (7th Cir.
2013). When assessing a district court’s denial of a motion for
new counsel, this court considers “(1) the timeliness of the
motion; (2) whether the district court conducted an adequate
inquiry into the matter; and (3) whether the breakdown be-
tween lawyer and client was so great as to result in a total lack
of communication, precluding an adequate defense.” United
States v. Ryals, 512 F.3d 416, 419 (7th Cir. 2008). “[E]ven if the
district court abused its discretion, [the defendant] is not en-
titled to a new [trial] unless he shows that the error caused
him prejudice, meaning that but for the error, there is a rea-
sonable probability that the [trial] would have produced a dif-
ferent result.” Id.First, the timeliness factor does not weigh in favor or
against the decision to deny Ryan’s motion. The motion was
4 No. 16-4048
filed shortly before trial began, but the prosecutor explained
that he would not object to continuing the trial if new counsel
was appointed, as he was busy with other trials himself. The
district court also considered the timeliness of Ryan’s motion
and determined the factor was “neutral” since the motion was
filed so close to the start of trial but no party objected to a con-
tinuance.
Second, the district court’s inquiry was adequate. Ryan ar-
gues the district court failed to adequately inquire about his
reasons for seeking new counsel and should have held a hear-
ing outside the presence of the prosecuting attorney. We
agree that such a hearing should generally be held outside the
presence of the prosecutor, but find that his presence created
no prejudice in this case. Ryan makes no compelling argu-
ment that the motion would have been decided differently if
the prosecutor had not been present. The court asked Ryan
several questions about his reasons for seeking new counsel
and sought to uncover what counsel could have done differ-
ently.
Third, the district court did not err in finding there was no
breakdown in communication between Ryan and his attor-
ney. The court reviewed their history of communications and
noted that Ryan was frustrated that counsel was not available
when he expected him to be and that tensions had risen be-
tween the two, but concluded that communication was ongo-
ing and that counsel could present an adequate defense.
Counsel had contacted all of the witnesses Ryan thought
would be helpful, employed the assistance of the FBI to try to
track down Ryan’s cousin, and hired an expert to investigate
the computer programs involved.
No. 16-4048 5
The district court did not abuse its discretion in denying
Ryan’s motion to substitute counsel, therefore, the denial is
not a basis for reversing Ryan’s convictions.
B. Proof of Knowing Distribution
It is unlawful to “knowingly receive[], or distribute[] any
visual depiction … , if the producing of such visual depiction
involves the use of a minor engaging in sexually explicit con-
duct; and such visual depiction is of such conduct.” 18 U.S.C.
§ 2252(a)(2). An offender convicted of this offense is subject to
a two-level sentencing enhancement if he “knowingly en-
gaged in distribution.” U.S.S.G. § 2G2.2(b)(3)(F). Ryan argues
that the term “distribution” as used in both provisions has
been incorrectly defined and that, as a result, his conviction
should be vacated and the enhancement should not have been
applied. We review the interpretation of the term de novo.
United States v. Cureton, 739 F.3d 1032, 1040 (7th Cir. 2014).
This court has not directly addressed the meaning of “dis-
tribution” as it is used in § 2252, but has interpreted the term
in § 2G2.2(b)(3)(F). In United States v. Carani, we held that a
defendant who “knowingly make[s] his child pornography
available for others to access and download” via peer-to-peer
sharing has distributed pornography for purposes of apply-
ing the knowing distribution sentence enhancement. 492 F.3d
867, 876 (7th Cir. 2007). We relied in part on the 10th circuit’s
analogy to gas station owners who allow drivers to “stop and
fill their cars for themselves” without the station owner’s ac-
tive involvement in the sale. Id. at 876 (quoting United States
v. Shaffer, 472 F.3d 1219, 1223–24 (10th Cir. 2007)). By doing
so, the owner is a distributor of gasoline. In the same way, a
user of a file sharing program who passively allows others to
download the files stored on his computer has distributed
6 No. 16-4048
those files. Id. There is no reason why this same definition
should not apply when interpreting “distribute” in the crimi-
nal statute.
Applying this definition, it is clear the government proved
Ryan knowingly distributed child pornography. The pro-
grams on Ryan’s computer downloaded files to a shared
folder from which other users could download the files. The
government’s expert witness explained to the jury how these
programs work and explained the programs running on the
computer that allowed the user to block certain people from
accessing the shared files. The government also presented ev-
idence of Ryan’s sophisticated understanding of computers
and software. Based on this evidence, a reasonable jury could
find beyond a reasonable doubt that Ryan knew the files were
accessible to others. See United States v. Stevenson, 680 F.3d 854,
857 (7th Cir. 2012) (“Only if the record is devoid of evidence
from which a reasonable jury could find guilt beyond a rea-
sonable doubt can [the defendant’s] conviction be over-
turned.”); see also United States v. Davis, 859 F.3d 429, 434 (7th
Cir. 2017) (“It is well established that a jury’s verdict may rest
solely upon circumstantial evidence.” (quoting United States
v. Robinson, 177 F.3d 643, 648 (7th Cir. 1999))). Ryan is not en-
titled to vacation of his conviction on this basis.
This evidence also supports the district court’s decision to
apply the Guideline enhancement for distribution of child
pornography. “We review the district court’s interpretation
and application of the Sentencing Guidelines de novo, and its
findings of fact for clear error.” Carani, 492 F.3d at 875. Appli-
cation of the distribution enhancement is appropriate when
the court finds that the “defendant either knew, or was reck-
less in failing to discover, that the files he was downloading
No. 16-4048 7
could be viewed online by other people.” United States. v. Rob-
inson, 714 F.3d 466, 468 (7th Cir. 2013). The court here relied
on the jury’s conviction and on the evidence of Ryan’s use of
sophisticated software to find that Ryan knew or was reckless
in failing to discover others could download his files. The
court’s conclusion is well supported by the record and con-
sistent with our interpretation of the term distribution as used
in the Guideline. Therefore, the application of the enhance-
ment was proper.
C. Forfeiture of Ryan’s computer
Finally, Ryan argues that his computer should not have
been forfeited based on a violation of the Federal Rules of
Criminal Procedure. Rule 32.2(b)(5)(A) requires that when a
defendant’s case has been tried before a jury and the indict-
ment states that the government is seeking forfeiture, the dis-
trict court “must determine before the jury begins deliberat-
ing whether either party requests that the jury be retained to
determine the forfeitability of specific property if it returns a
guilty verdict.” Fed. R. Crim. P. 32.2(b)(5)(A). If a party timely
requests that the jury determine forfeiture, the government
must submit a special verdict form listing the specific prop-
erty to be forfeited and ask the jury “to determine whether the
government proved the requisite nexus between the property
and the offense … .” Fed. R. Crim. P. 32.2(b)(5)(B). The Rule
does not indicate the consequences of the court’s failure to de-
termine whether a party requests that the jury be retained.
Here the Rule was clearly violated. Because Ryan made no
objection at trial, however, he is entitled to have the forfeiture
order vacated only if the district court’s error affected his sub-
stantial rights. Fed. R. Crim. P. 52(b). An error affects a de-
fendant’s substantial rights if the outcome would have been
8 No. 16-4048
different but for the error. Molina-Martinez v. United States, 136
S. Ct. 1338, 1343 (2016).
The government argues that, because the jury found Ryan
guilty of knowingly distributing the files found on his com-
puter, the jury could not have concluded that there was no
nexus between the computer and the offense. Therefore, the
error did not affect the outcome.
Generally, a jury’s guilty verdict alone is insufficient. The
jury must specifically determine whether the government es-
tablished the requisite nexus between the property and of-
fense and return a special verdict form reflecting that finding.
In many cases, such a finding is not necessary to find the de-
fendant guilty. In this case, however, no reasonable juror
could have found there was not a sufficient nexus between
the property and the offense. There was no question in this
case that the specific computer listed in the forfeiture order
was the one used by Ryan containing the illegal files. Ryan
himself testified that there was child pornography found on
his computer and that it was the computer found in his house.
(R. 52 at 35.) Therefore, the error was harmless.
III. CONCLUSION
Ryan challenged his convictions on two bases: the district
court’s denial of his motion to substitute counsel and the gov-
ernment failure to prove he knowingly distributed the porno-
graphic images. The district court adequately addressed the
request to substitute counsel at a pre-trial hearing, found that
counsel was sufficient, and denied the motion. The denial was
not an abuse of discretion. And the government sufficiently
proved that, by making his files available to other users, Ryan
knowingly distributed the pornographic materials. Therefore,
No. 16-4048 9
the convictions are upheld. Since the government proved
Ryan knowingly distributed the files, applying the sentencing
enhancement for distribution was appropriate. Finally, the
district court erred by failing to determine whether any party
requested the jury determine the forfeiture claim, but the er-
ror was harmless. The judgment of the district court is
AFFIRMED.