United States v. Jason P. Bailey

Case: 12-11808 Date Filed: 10/22/2012 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11808
Non-Argument Calendar
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D.C. Docket No. 9:11-cr-80091-WJZ-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
JASON P. BAILEY,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 22, 2012)
Before BARKETT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Jason Bailey appeals his 210-month sentence, imposed at the low end of the
applicable guideline range, after he pled guilty to one count of distribution of child
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pornography in violation of 18 U.S.C. § 2252(a)(2). On appeal, Bailey argues that
the district court plainly erred when it applied a five-level enhancement to his
sentence, pursuant to U.S.S.G. §2G2.2(b)(3)(B), for distributing child
pornography in receipt, or expectation of receipt, of a thing of value. Finding no
plain error on the part of the district court, we affirm.
We normally review district court findings of fact for clear error and review
the application of the Sentencing Guidelines de novo. United States v. Newman,
614 F.3d 1232, 1235 (11th Cir. 2010). However, when a defendant fails to raise a
particular argument in the district court below, we review the decision only for
plain error. See United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005)
(per curiam). To establish plain error, the defendant must show: (1) error; (2) that
is plain; (3) that affects substantial rights; and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.Section 2G2.2(b)(3)(B) of the Sentencing Guidelines authorizes a five-level
enhancement where the defendant engages in the distribution of child pornography
“for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary
gain.” U.S.S.G. 2G2.2(b)(3)(B). This provision applies to “any transaction,
including bartering or other in-kind transaction, that is conducted for a thing of
value, but not for profit.” U.S.S.G. § 2G2.2(b)(3)(B), cmt. n.1. A “thing of value”
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is defined as “anything of valuable consideration,” and both the Sentencing
Guidelines and our case law have explicitly included the receipt of child
pornographic material in exchange for other child pornographic material as an
exchange for a “thing of value.” Id.; see also United States v. Bender, 290 F.3d
1279, 1286 (11th Cir. 2002) (holding that “when a defendant trades child
pornography for more child pornography, [he] has engaged in ‘distribution for the
receipt, or expectation of receipt, of a thing of value’”).
Bailey contends that the district court plainly erred in applying the §
2G2.2(b)(3)(B) five-level enhancement, which he claims the district court based
solely on his use of the Gigatribe peer-to-peer file-sharing network. Bailey claims
that the record only shows that he intended to distribute child pornography,
warranting a two-level sentencing enhancement under § 2G2.2(b)(3)(F), but he
maintains that the record does not show what he expected or whether he expected
anything at all in exchange for sharing the pornographic material in his
possession.1
Bailey relies heavily on our decision in United States v. Vadnais, 667 F.3d
1Bailey also claims that there is no evidence that he solicited or downloaded the files that
the undercover agent, Detective Ramos, sent him. However, this is irrelevant to our analysis, as
a defendant need not actually receive child pornography; instead, merely expecting its receipt is
sufficient under the auspices of § 2G2.2(b)(3)(B).
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1206 (11th Cir. 2012), where we held that a defendant’s mere use of a peer-to-peer
file-sharing network to download child pornography does not, by itself, support
the application of the § 2G2.2(b)(3)(B) five-level enhancement. 667 F.3d at 1209.
Instead, the government must present “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.” Id.
However, this Court has also recognized that “[o]ne incentive to make child
pornography images available over the Internet via peer-to-peer file-sharing
software is to obtain other images of child pornography in return,” and that “even
without an explicit quid pro quo agreement with another distributer of child
pornography, a person may engage in such conduct with the reasonable
expectation of an exchange.” United States v. Cote, 11th Cir. 2011, __ F. App’x
__ (No. 10-13364, Nov. 1, 2011) (per curiam) (holding that the five-level
enhancement applied to a defendant who used the Gigatribe peer-to-peer file-
sharing program to download, post, and share child pornography; who knew how
to use the program to search for and download child pornography; who stored his
child pornography in a shared file available for download by other users; who
invited others to download his files; and who expressly asked the undercover
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officer whether the officer had files to share).
Based on the evidence presented below, the district court did not plainly err
in applying the five-level sentence enhancement. The online communication
between Bailey and the undercover agent, Detective Ramos, as well as Bailey’s
protective file distribution habits, sufficiently link Bailey’s distribution of child
pornography with the expectation of receiving child pornography in return. After
Bailey initiated a private conversation with Detective Ramos, the detective asked
Bailey, “what do you like,” as well as whether Bailey preferred images of boys or
girls. It was only after Detective Ramos asked these questions, creating an
expectation that Detective Ramos would send Bailey child pornography to match
Bailey’s pornographic interests, that Bailey shared his password-protected child
pornography files and their respective passwords.
Further, other portions of the record provide additional evidence to establish
Bailey’s expectation of an exchange of pornographic material: (1) defense
counsel’s statement during the sentencing hearing that Bailey received the child
pornography files by “swapping images with people on the internet”; (2) defense
counsel’s statement during the sentencing hearing that when sending child
pornography, Gigatribe users “send you what they have, you send what you have”;
and (3) the inclusion of a psychologist’s report in Bailey’s sentencing
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memorandum, highlighting Bailey’s admission that he “exchanged images of child
pornography with select individuals on a file sharing service (Gigatribe).”
Ultimately, Bailey’s conversation with Detective Ramos, in conjunction with the
other statements by defense counsel and by Bailey himself, constitute the direct
and circumstantial evidence necessary to show that Bailey “reasonably believed
that he would receive something of value by making his child pornography files
available for distribution.” Vadnais, 667 F.3d at 1209.
Moreover, the issue before us in Vadnais was a rather narrow one: “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).” 667 F.3d at 1208. Thus, we specifically
examined the district court’s holding and the government’s contention that
Vadnais’s failure to turn off the default file-sharing setting, which automatically
placed the downloaded child pornography files in a shared folder on his computer
and automatically made them available to other network users, was sufficient to
warrant the application of the five-level sentencing enhancement. While we
rejected this argument and ultimately reversed the district court’s ruling, the case
before us is distinguishable from the more passive, default-setting distribution at
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issue in Vadnais.2
While the record suggests that there were indeed some files that Bailey
made available without password protection, as was the case in Vadnais, the
record before us does not end there: as mentioned above, Bailey explicitly
discussed his pornographic preferences with Detective Ramos before sharing the
2
Bailey attempts to analogize Gigatribe, the peer-to-peer file sharing program at issue
here, to LimeWire, the peer-to-peer file sharing program at issue in Vadnais. Baily claims that it
is immaterial that Gigatribe requires users to receive specific authorization to access another
user’s files. In Vadnais, we described the function of LimeWire 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.
667 F.3d at 1208 (quoting Arista Records LLC v. Lime Group LLC, 784 F. Supp. 2d 398,
410–11 (S.D.N.Y. 2011) (footnote omitted)). We also specifically found that the five-
level sentencing enhancement was “not supported by the ordinary operation of the
LimeWire file-sharing software,” id. at 1209, which allowed default “freeloading,” or
“obtaining files from others without any requirement of providing files in return.” Id. at
1210. Gigatribe’s network operation, on the other hand:
[E]nables a user to create his own private network, which he controls. He can
invite guests to join his network, and remove guests from his network at any time.
He can also prevent other users from viewing his personal information without his
permission. A user can also join the networks of other Gigatribe users, but only
with the permission of the user who created the network. Users select specific
folders on their computers they wish to share with other users in the network.
United States v. Ladeau, D. Mass. 2010, __ F. Supp. __, (No. 09-40021, Apr. 7, 2010);
see Cote, __ F. App’x at __ (“Defendant Cote sent Detective Ramos an online invitation
to join Cote’s private peer-to-peer network.”). Thus, the operational differences between
LimeWire and Gigatribe are very much relevant here.
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password-protected child pornography files. Although the files that Bailey made
available without password protection might only warrant a two-level
enhancement under § 2G2.2(b)(3)(F), as Bailey claims, the circumstances
surrounding the password-protected files that he shared with Detective Ramos are
sufficient to support the five-level enhancement. Thus, the aforementioned
evidence indicates that it was not plain error for the district court to find that
Bailey exchanged his files for a thing of value. Accordingly, we affirm.
AFFIRMED.
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