Fourth Circuit: Peer-to-Peer File Sharing is “Distribution” of Child Pornography per 18 USC §2252A

United States v. Dean Stitz (No. 16-4813)

The defendant was convicted for distributing child pornography after making files available for download on a peer-to-peer file sharing network. On appeal, he argues that the district court erred in finding a factual basis for his guilty plea, because he lacked specific intent to distribute child pornography.

The Fourth Circuit initially notes that the defendant failed to assert this argument below: “Appellant may have argued below that he did not have the specific intent to distribute child pornography and that his distribution was passive, but these arguments were not a challenge, even indirectly, to the factual basis of the plea agreement. Rather, they were made as part of a § 3553(a) variance argument, which does not implicate the factual basis underlying the plea.”

The Fourth Circuit goes on to hold that the mens rea necessary for conviction in cases of child pornography distribution is “knowingly,” which doesn’t require specific intent to distribute. The Court then joins a number of other federal circuits in holding that “where files have been downloaded from a defendant’s shared folder, use of a peer-to-peer file-sharing program constitutes ‘distribution’ pursuant to 18 U.S.C. §2252A.”

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