“George Mason University CFRS 760 Legal and Ethical Issues in Computer ForensicsResearch PaperU.S. v. McVey, 476 F. Supp. 2d 560 (E.D. Va. 2007)Larkin Walker III4-11-2019Executive SummaryThe case I choose for this research paper is U.S v. McVey. Mr. Clint Manuel McVey (Defendant) installed and used the file-sharing software LimeWire to receive child pornography from other individuals. The defendant knew that the software allowed other people to receive child pornography from his computer using this software. Mr. McVey used the software and became a member of a file-sharing group of computers that shared child pornography.
It is common knowledge that the purpose of belonging to a file-sharing group is to distribute the receipt of files from others by agreeing to allow other people access to the files on the user’s computer. The defendant is believed to knowing distributed child pornography using the file-sharing software because he anticipated that he would receipt more child pornography. Thus, the court feels that the five-level enhancement to section 2g2.
(b)(3)(B) of the U.S Sentencing Guidelines Manual applies in this case. The issue is whether the section 2G2.2(b)(3)(B) enhancement applies to the defendant. After the testimonies’ the court finds that the five-level enhancement under section 2G2.2 (b) (3) (B)of the U.S. Sentencing Guidelines Manual does apply to the defendantCase BackgroundOn October of 2005, the Virginia Internet Crimes Against Children Task Force conducted an internet session with the intent of discovery any computers in the Virginia region that was distributing child pornography. The investigator found the defendant McVey’s computer was found attempting to share images of child pornography. The Defendant was enlisted in the United States Army and was stationed at Fort Eustis, Virginia. The defendant’s computer was ceased during a search of his barracks room. After the search, Mr. McVey made a sworn statement to investigators explaining that hey used file-sharing software to download music, pornography, and child pornography. The defendant said that he used the software “LimeWire” for file-sharing. LimeWire was a free peer-to-peer file sharing (P2P) client for Windows, OS X, Linux, and Solaris. He also explained that he did not send child pornography to anyone over the internet. However, he did know that the file-sharing software allowed others to upload child pornography from his computer. The defendant’s explanation was that he did not know how to disable this feature of the software. The LimeWire user manual that was introduced into evidence at sentencing explained nine different steps the user must take to install the software. A computer forensic analysis of the defendant’s computer should the presence of multiple files containing child pornography. October 24, 2006, the defendant Pled guilty to the receipt of child pornography in violation of 18 U.S.C. s 225A(a)(2). The probation officer recommended sentencing based on a five-level enhancement to section 2G2.2(b)(3)(B) of the U.S. Sentencing Guidelines Manual, because the Defendant crime involved the [d]istribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. The issue, in this case, is that the defendant is challenging weather section 2G2.2 (b) (3) (B) enhancement of the U.S. Sentencing Guidelines Manual applies to him because he did not distribute child pornography. Plaintiff’s/Government’s ArgumentsAt the sentencing hearing, the government argued that if the Defendant had wanted to avoid distributing files to others, he could have simply disabled the sharing feature of his software. At the sentencing hearing, the government introduced a LimeWire user manual into evidence. The government also called an agent of the Federal Bureau of Investigation (FBI) as a witness, to testify regarding the user manual and other matters. The government showed that the user manual explained how files are shared and how to disable the file-sharing feature. The government argument is that the Defendant installed and used the file-sharing software for child pornography from others while knowing that the software allowed for other persons to download child pornography from his computer. The government argued that the Defendant knowingly became a member of the file-sharing group of computer users that shared child pornography. The government suggested that it is undisputed that the purpose of belonging to any file-sharing group is to facilitate the transfer of files from others by allowing other persons access to files on one’s computer. The government argued that the defendant distributed child pornography by installing and using the file-sharing software, and he dis so with the reasonable belief that he would receive more child pornography. Which justifies that section 2G2.2(b)(3)(B) of the U.S. Sentencing Guidelines Manual applies in this case.Defense’s ArgumentThe Defendant stated that he never sent any child pornography to anyone over the internet. Although the file-sharing software allowed persons(s) to retrieve child pornography from his computer, His defense argument is that he did not know how to shut off the feature of LimeWire file-sharing that allowed other people to upload child pornography from his computer. He stated that he did not willfully distribute child pornography to other persons via the file-sharing software.Federal, State, or Case lawsTitle 18 U.S.C. s 2252A(a)(2) is written as any person who knowingly receives or distributes any child pornography using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce by any means, including by computer; or any material that contains child pornography using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce by any means, including by computer;”Section 2G2.2(b)(3)(B) of the U.S. Sentencing Guidelines Manual (2006) allows for a five-level enhancement when an offense of receipt of child pornography involves [d]istribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. U.S Sentencing Guidelines Manual s 2G2.2. CMT.n.1. defines the term “distribution” as “any act, including possession with the intent to distribute, production, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor.” In United States v. Bender, 290 F.3d 1279, 1286-87 (11th Cir.2002) (holding that when a defendant trades child pornography in exchange for other child pornography, the defendant has engaged in distribution for the receipt, or expectation of receipt, of a thing of value’ ). Settled that the enhancement applies with a defendant exchanges child pornography with another person pursuant to an agreement or understanding. Also, the court of appeals has upheld the ruling that the enhancement applies even if there is not a specific agreement or understanding, if a defendant distributes child pornography in anticipation of, or while reasonably believing in the possibility of, the receipt of a thing of value. The outcome of the caseThe court noted that the LimeWire user manual was clear on how a user of the software how to disable the sharing feature with a few “clicks of the mouse.” However, even assuming for the sake of argument that the Defendant did not know how to disable the sharing feature, it is still clear that Defendant distributed child pornography. As noted above, “distribution” is defined broadly to include “any act . . . related to the transfer of material involving the sexual exploitation of a minor.” U.S. SENTENCING GUIDELINES MANUAL § 2G2.2 cmt. n.1. Therefore, the Defendant committed acts falling within this definition when he installed and used the file-sharing software with the knowledge that it allowed others to obtain child pornography from his computer. After the testimonies’ the court HOLDs that the five-level enhancement under section 2G2.2 (b) (3) (B) of the U.S. Sentencing Guidelines Manual applies to the defendant, as a member of a file-sharing group of computer users, receiving child pornography other the internet while also knowing that his computer shares with other members of the group. The court subsequently, denied the Defendant’s objection to receiving sentencing under the guidelines of 2G2. (b)(3)(B) enhancement.