|
|
http://laws.findlaw.com/9th/9810009.html |
U.S. 9th Circuit Court of Appeals
USA v MOHRBACHER
9810009
UNITED STATES OF AMERICA, No. 98-10009 Plaintiff-Appellee, D.C. No. v. CR-95-00296-WBS DANIEL ZANE MOHRBACHER, OPINION Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted
February 8, 1999--San Francisco, California
Filed June 29, 1999
Before: Phyllis A. Kravitch,* Stephen Reinhardt, and
Thomas G. Nelson, Circuit Judges.
Opinion by Judge Reinhardt;
Concurrence by Judge Nelson
_________________________________________________________________
_________________________________________________________________
COUNSEL
Michael Bradley Bigelow, Sacramento, California, for the
defendant-appellant.
Miguel Rodriguez, Assistant United States Attorney, Sacra-
mento, California, for the plaintiff-appellee.
_________________________________________________________________
OPINION
REINHARDT, Circuit Judge:
Daniel Zane Mohrbacher appeals two counts of conviction
under 18 U.S.C. S 2252(a)(1) for transporting visual depic-
tions of minors engaged in sexually explicit conduct. He does
not challenge his other two counts of conviction, one for
receiving visual depictions of minors engaging in sexually
explicit conduct under 18 U.S.C. S 2252(a)(2) and the other
for possession of three or more items containing such depic-
tions under S 2252(a)(4)(b). Mohrbacher's illegal conduct
consisted of downloading images of child pornography from
a foreign-based electronic bulletin board. As to the challenged
counts, he argues that he was charged and convicted under the
wrong section of the statute because while he may have
received these images in violation of S 2252(a)(2) he did not
transport or ship them in violation ofS 2252(a)(1). We agree
with his reading of the statute, and accordingly reverse these
two counts of conviction. However, we reject Mohrbacher's
second contention on appeal, and hold that the district court
did not clearly err by denying him credit for acceptance of
responsibility.
I.
BACKGROUND
In March 1992, Danish police seized the business records
of BAMSE, a computer bulletin board system based in Den-
mark that sold child pornography over the Internet. The
records included information that Mohrbacher, who lived in
Paradise, California, had downloaded two graphic interface
format (GIF) images from BAMSE in January 1992.
In March 1993, police executed a search warrant at Mohr-
bacher's workplace and found, among other images, two files
that had been downloaded from BAMSE, one of a nude girl
and one of a girl engaged in a sex act with an adult; both girls
were under twelve. During the execution of the warrant,
Mohrbacher was cooperative, confessing that he had down-
loaded the two images from BAMSE, showing police where
they could find the images that they were looking for on his
computer, and providing telephone records that confirmed the
dates of his Internet activity. Mohrbacher subsequently coop-
erated with the government's investigation of child pornogra-
phy. He made monitored telephone calls to a number of
electronic bulletin boards, provided the name of one bulletin
board operator, and testified at a grand jury hearing. At that
hearing, Mohrbacher again admitted that he had downloaded
at least one of the two images.
In May 1996, Mohrbacher was indicted for one count of
transporting visual depictions of minors engaged in sexually
explicit conduct in violation of 18 U.S.C. S 2252(a)(1) and
one count of possession of three or more items depicting sex-
ually explicit conduct in violation of 18 U.S.C.S 2252(a)
(4)(B). Pursuant to a plea agreement, Mohrbacher entered a
guilty plea to count two in February 1997. In September 1997,
however, with the consent of the government and the district
court, this guilty plea was withdrawn because the factual basis
that had been established no longer constituted a crime under
18 U.S.C. S 2252(a)(4)(B). See United States v. Lacy, 119
F.3d 742, 747 (9th Cir. 1997), cert. denied, 118 S.Ct. 1571
(1998) (holding that knowledge of the nature of the material
is an element of the offense of possessing child pornography).
At the hearing on Mohrbacher's motion to withdraw his plea,
the prosecutor appeared ambivalent about pursuing another
plea bargain. He first commented that "there would be no plea
offer on the table from the United States," but when the judge
pointed out that further negotiations were not precluded he
expressed his agreement with that observation. Through his
attorney and his own statements to the judge, Mohrbacher
communicated his frustration with the pace of the proceedings
and with the impact that the case was having on his family,1
and announced that he was unwilling to continue waiving
time and planned to insist on his right to a speedy trial. He
also claimed that he had not known the nature of the child
pornography at the time that he downloaded it.
The grand jury then reindicted Mohrbacher under a super-
seding indictment for two counts of transporting visual depic-
tions of minors engaging in sexually explicit conduct in
violation of 18 U.S.C. S 2252(a)(1), one count of receipt of
visual depictions of minors engaging in sexually explicit con-
duct in violation of 18 U.S.C. S 2252(a)(2), and one count of
possession of three or more items depicting sexually explicit
conduct in violation of 18 U.S.C. S 2252(a)(4)(B). The gov-
ernment represents that on a number of subsequent occasions
it approached Mohrbacher in order to negotiate a plea
agreement.2 No plea agreement was reached, and the case pro-
ceeded to trial.
Mohrbacher's trial began on September 30, 1997. On Octo-
ber 3, he made a Rule 29 motion for acquittal on the trans-
porting counts, arguing that downloading images constituted
receiving, rather than transporting or shipping, within the
common sense meaning of the statute. The district court
denied the motion, reasoning that downloading from a com-
puter bulletin board was analogous to "the seller putting [an
item] on his shelf and the buyer being the person who takes
it off the shelf. Here, it was Mr. Mohrbacher who pushed the
right buttons that caused the images to be sent from Denmark
to California." The court also stated that Mohrbacher could be
criminally liable for causing the images to be transported
under 18 U.S.C. S 2,3 commenting that "[i]t was Mr. Mohr-
bacher who caused the images or visual depiction to be trans-
ported in foreign commerce."
At the trial, in addition to the witnesses who linked Mohr-
bacher directly to the images that were the subject of the
criminal charges, the prosecution presented expert testimony
about the operation of the bulletin board. The expert witness
testified that "[a] computer bulletin board system is kind of
like a store of sorts. There's the capability of sending and
receiving files and sending and receiving messages. " Having
studied BAMSE for two years, he provided the following
description of it:
BAMSE was a computerized bulletin board system.
The bulletin board system is an automated system
that runs 24 hours a day, seven days a week. That's
a computer system that allows people to connect to
it via computer and telephone modem. Once users
connect to the BBS, they log in as a user name, they
provide a password, and the BBS has a list of images
available for download. Individuals would select pic-
tures, then download them to their computer. . . . The
image files on the BAMSE BBS were GIF files,
which stands for graphic interchange files. It's just a
binary string of information. It's the computer's way
of representing a visual image.
The expert described the process of downloading GIF image
files, explaining that the bulletin board user selects an image
and uses his own computer modem to download the image
file through telephone lines. Once downloading has been
completed, the image is contained in the user's own computer
system. No human conduct is required at the bulletin board
site in order to facilitate this file transfer. When asked
whether a "store" analogy was appropriate, the expert agreed
but then described one difference: when a customer purchases
an item on the bulletin board, the supply is not depleted --
rather, a copy of the original product is generated and sent.
On cross-examination, he agreed that defense counsel's anal-
ogy to a mail order catalogue was fair, and the following
exchange ensued in which Mohrbacher's attorney attempted
to demonstrate how downloading would compare to calling in
a mail order:
Q. I would call them on their catalog order num-
ber.
A. Okay.
Q. And I would either be connected with a human
being or with, in your world --
A. Computer.
Q. -- some computer. So the computer's just a
substitute for the human being who initially we
used to contact; isn't that right?
A. Sure.
Q. Just a way of doing business. Instead of the
human being responding, the computer
responds?
A. Sure. A lot of the sites have that with the Inter-
net access right now.
Q. Sure. So what we're doing as the businessman
that runs Penney's, I've substituted my com-
puter system, which guys like you developed,
for the human being I used to have to pay too
much money?
A. Okay.
Q. Now the BBS is the same program; is it not?
Q. Same idea we're going with, yeah.
. . . .
A. A systems operator is like a storekeeper or
shopkeeper. He buys computer hardware, he
buys BBS software, and he has his goods that
he wants to sell. And he has to customize the
BBS software to reflect what merchandise he
wants to sell. He needs to create his catalog, if
you will.
Q. Sure. So if he didn't have all this computer
stuff, what he'd have is a room with a bunch of
-- like a wall with little compartments in it?
A. Sure.
Q. And you'd call him up, and he'd walk over, and
he'd pull it out of the compartment, and he'd
send it to you if you paid him for it?
A. Sure.
Q. So instead of having the sysop [systems opera-
tor] do the shipping, you've got the computer
doing the shipping?
A. Correct.
During the presentation of the prosecution's case, Mohr-
bacher's attorney challenged and attempted to impeach some
of the witnesses. However, after the government rested,
Mohrbacher presented no witnesses, evidence or defense. His
attorney's closing argument suggested the possibility that
Mohrbacher might not have known the nature of the images
that he was downloading or that someone else could have
been responsible for downloading and storing the illegal
material. The attorney also argued that downloading an image
could constitute "receiving" but not "transporting" or
"shipping." At the end of the trial, Mohrbacher renewed his
Rule 29 motion and the district court again denied it. The jury
convicted Mohrbacher on all counts.
Given Mohrbacher's lack of criminal history, the sentenc-
ing range for the offense was 37 to 46 months. The govern-
ment filed a 5K1.1 motion for downward departure based on
substantial assistance, and the district court departed even far-
ther than the government had recommended. At the sentenc-
ing hearing, Mohrbacher continued to maintain that he had
not known the nature of the images that he was downloading
and that he therefore could not have pled guilty to the charged
offenses while maintaining his honesty. The district court
rejected Mohrbacher's argument that he was entitled to a
three-level adjustment for acceptance of responsibility and
sentenced Mohrbacher to nine months for each count of con-
viction, sentences to be served concurrently, and three years
of supervised release.
Mohrbacher filed a timely notice of appeal and a motion to
be released on bail pending appeal. In denying the motion for
bail, the district court once again commented on the merits of
the Rule 29 motion, stating that by downloading the images,
"[w]hat he basically did was reach onto the bulletin board and
get his own information. They didn't have to send it to him.
They post it in their bulletin board, and he's the one that does
all of the conduct on his computer which results in his down-
loading the information from their bulletin board into his
computer."
By the time we heard his appeal, Mohrbacher had finished
serving his period of incarceration, but he remains on super-
vised release.
II.
MOTION FOR ACQUITTAL
The facts relevant to Mohrbacher's motion for acquittal are
not disputed. We therefore confront directly the legal question
whether downloading images from a computer bulletin board
constitutes shipping or transporting within the meaning of the
terms as used in 18 U.S.C. S 2252(a)(1), a question of first
impression. Mohrbacher argues that downloading is properly
characterized as receiving images by computer, which is pro-
scribed by S 2252(a)(2), rather than transporting or shipping
images by computer as prohibited by S 2252(a)(1). If Mohr-
bacher is right, then with respect to the two challenged counts
he was charged and convicted under the wrong statutory pro-
vision, and those convictions must be reversed. See United
States v. Stewart Clinical Laboratory, Inc., 652 F.2d 804, 807
(9th Cir. 1981) (reversal of convictions required when defen-
dants were charged and convicted under wrong subsection of
statute).
Mohrbacher reasons that downloading is essentially an
electronic request by one computer owner to another com-
puter owner to deliver files or data electronically to the
requesting owner's computer. He presents a definition of
downloading in support: "To copy data . . . from a main
source to a peripheral device. . . . the process of copying a file
from an online service or bulletin board service (BBS) to
one's own computer." PHILIP E. MARGOLIS, RANDOM HOUSE
PERSONAL COMPUTER DICTIONARY at 156 (2d ed. 1996). This
definition is in accord with the expert testimony that was pres-
ented by the prosecution at trial. As was discussed in greater
detail earlier in this opinion, that expert testified that down-
loading is analogous to placing an order through a mail order
catalogue except that a computer fills the order automatically
and the inventory is not depleted because a new copy of the
image is generated.4
[1] The question that we must resolve is whether, given
what appears to be a noncontroversial definition of the term,
Mohrbacher's "downloading" of two images constitutes a vio-
lation of S 2252(a)(1). Mohrbacher suggests an analogy for
our consideration, an analogy that is consistent with that testi-
fied to by the government expert. Mohrbacher argues that his
conduct was comparable to that of a customer who places a
phone order requesting delivery of an item, the only differ-
ence being that the entity that was filling the order -- the bul-
letin board -- had a completely automated response and did
not require any action by an individual at the time the order
was filled. The government argues that the automated nature
of the bulletin board's response makes Mohrbacher the one
responsible for causing the visual images to move from one
location to another and that an individual who causes trans-
porting or shipping is guilty as a principal. At oral argument,
when asked to clarify whether a computer bulletin board ser-
vice operator could be liable for transporting or shipping
images under its interpretation of the statute, the government
answered in the negative. In the government's view, it is only
the individual who downloads the image who has caused that
image to be transported. Mohrbacher responds by pointing out
that a request will not be filled unless the operator of the bul-
letin board has configured it to accept orders. Thus, he argues,
it is the bulletin board operator who has transported or
shipped the images, and the downloader has only received
them. The disagreement is in essence over whether the gov-
ernment is correct that the automated nature of the process
requires the conclusion that downloading is equivalent to
transporting.
[2] "In interpreting a statute, we look first to the plain lan-
guage of the statute, construing the provisions of the entire
law, including its object and policy, to ascertain the intent of
Congress." Northwest Forest Resource Council v. Glickman,
82 F.3d 825, 830 (9th Cir. 1996) (internal quotation marks
and citation omitted). The statute at issue does not define the
terms "transport," "ship" or "receive." See 18 U.S.C. S 2256
(1999). "Where a statutory term is not defined in the statute,
it is appropriate to accord the term its `ordinary meaning.' "
Northwest Forest Resource Council, 82 F.3d at 833 (internal
quotation marks and citation omitted). When there is no indi-
cation that Congress intended a specific legal meaning for the
term, the court may look to sources such as dictionaries for a
definition. See Muscarello v. United States,
524 U.S. 125
, 118
S.Ct. 1911, 1914-16 (1998) (relying upon dictionaries, litera-
ture, and newspaper reports, in addition to legislative history,
to ascertain the meaning of the word "carry").
[3] The first definition of "receive" in the Oxford English
Dictionary is "[t]o take into one's hand, or into one's posses-
sion (something held out or offered by another); to take deliv-
ery of (a thing) from another, either for oneself or for a third
party." OXFORD'S ENGLISH DICTIONARY 2D 314 (1989).5 An
individual who downloads material takes possession or
accepts delivery of the visual image; he has therefore cer-
tainly received it. In fact, guides to computer terminology
often analogize downloading to receiving information and
uploading to transmitting or sending. "To transmit a file from
one computer to another. When conducting the session, down-
load means receive, upload means transmit." ALAN FREEDMAN,
COMPUTER WORDS YOU GOTTA KNOW! ESSENTIAL DEFINITIONS
FOR SURVIVAL IN A HIGH-TECH WORLD 49 (1993). "To down-
load means to receive information, typically a file, from
another computer to yours via your modem . . . . The opposite
term is upload, which means to send a file to another
computer." ROBIN WILLIAMS, JARGON, AN INFORMAL DICTIONARY
OF COMPUTER TERMS 170-71 (1993). Even the prosecution's
expert, when asked what happens when an individual down-
loads an image, responded, "When you download the pic-
tures, you receive an exact copy of the picture that existed in
Denmark." See also Peter Wayner, Plugging In to the Inter-
net: Many Paths, Many Speeds, N.Y. TIMES (Jan. 30, 1999)
("You might be able to download, or receive, large volumes
of data quickly, but the time to upload, or send, information
could be much slower.").
[4] However, it is also possible, employing dictionary defi-
nitions, to construe the terms "transport" and "ship" in a man-
ner that encompasses a downloader's acts. "Transport" is
defined as "to carry, convey, or remove from one place or
person to another; to convey across." OXFORD 'S ENGLISH
DICTIONARY 2D, supra, at 423.6 Shipping is usually defined as
one manner of transporting. See WEBSTER'S THIRD, supra, at
2096 ("to cause to be transported" or "to move (something)
from one place or position to another").7 An individual who
downloads an image to his own computer has indisputably
received that image; however, he has also arguably moved
that image from one place to another -- from the bulletin
board to his own computer.8 Of course, the downloader is
only able to accomplish this task because another person has
preconfigured the bulletin board to accept his order.9 Given
the role that another individual plays in uploading the images
and configuring the bulletin board to send them upon request,
and the fact that the process of downloading would seem to
correspond much more closely with the term "receiving" than
with "transporting" or "shipping," the dictionary definitions
are not dispositive of the issue before us.
[5] We next look to other principles of statutory interpreta-
tion. In determining the meaning of a statutory provision, a
court may consider the purpose of the statute "in its entirety,"
see Alarcon v. Keller Industries, Inc., 27 F.3d 386, 389 (9th
Cir. 1994), and whether the proposed interpretation would
frustrate or advance that purpose. See Tierney v. Kupers, 128
F.3d 1310, 1311-12 ((9th Cir. 1997). In this case, the statutory
purpose provides no guidance as to which of its sections
addresses the act of downloading child pornography. In
United States v. Black, 116 F.3d 198 (7th Cir.), cert. denied,
118 S.Ct. 341 (1997), the Seventh Circuit described the stat-
ute's purpose, as follows: "broad legislative enactment was
necessary to prevent child abuse." 116 F.3d at 202. The statu-
tory provisions therefore must be interpreted in accord with
the statute's broad and general purpose of facilitating the
prosecution of individuals who are involved with child
pornography.10 However, the decision whether downloading is
properly charged under (a)(1) or (a)(2) of the statute, or both,
will neither hinder nor facilitate such prosecutions. Because
the penalties and sentencing guidelines ranges for both provi-
sions are identical, this court's decision will determine how
downloading should be prosecuted but not affect the difficulty
or nature of such prosecutions. Whichever statutory provi-
sions may be deemed applicable, the statutory purpose will be
equally served.
[6] For further interpretive guidance, a court may examine
the particular statutory language to be construed in relation to
the other parts of the statute. See United States v. DeLaCorte,
113 F.3d 154, 156 (9th Cir. 1997). Here, an examination of
the structure of S 2252 tends to support Mohrbacher's posi-
tion. The fact that Congress chose to separate the provision
that makes transporting or shipping unlawful from the subsec-
tion that criminalizes receiving or distributing suggests that
the provisions are meant to regulate different types of behav-
ior. "[A] statute must be interpreted to give significance to all
of its parts. . . . We have long followed the principle that stat-
utes should not be construed to make surplusage of any
provision." Northwest Forest Resource Council , 82 F.3d at
833-34 (internal citation, quotation marks, and bracket omit-
ted).
[7] On the basis of our analysis of the nature of the process
of downloading, the dictionary definitions of the terms
included in the statute, the statute's purpose, and the structure
of the statutory provisions, we conclude that Mohrbacher's
interpretation of the statute is correct. An individual who
downloads images from a computer bulletin board takes an
action that is more analogous to ordering materials over the
phone and receiving materials through the mail than to send-
ing or shipping such materials. Those who are responsible for
providing the images to a customer, by making them available
on a computer bulletin board or by sending them via elec-
tronic mail, are properly charged with and convicted of ship-
ping or transporting images under S 2252(a)(1). A customer
who is simply on the receiving end -- who downloads an
image that has been made available through an automated,
preconfigured process or that has been sent by another com-
puter user -- is guilty of receiving or possessing such materi-
als under S 2252(a)(2) but not of shipping or transporting
them.
We reject the argument that even if downloading itself is
more analogous to receiving, Mohrbacher, by ordering the
pornographic images, caused them to be transported and is
therefore nonetheless criminally liable under S 2252(a)(1).
Acceptance of this reasoning would allow any act of ordering,
requesting, or indicating an interest in contraband to provide
a basis for conviction of transporting or shipping such mate-
rial, and would eliminate the distinction between purchasers
and sellers or shippers and receivers. Because a request for
drugs could be viewed as causing a drug sale to occur, any
purchaser or receiver could be charged as a buyer or distribu-
tor at the prosecutor's discretion. For the reasons explained
above, the distinctions between downloading an image and
ordering an item from a human supplier -- i.e., the facts that
the response is automatic (because an individual has pro-
grammed it to be so) and that filling the order does not deplete
the supply -- provide no logical reason to limit the principle
that would be established: any customer who requests or
orders a product could be held liable for causing that product
to be sent or sold.
[8] The government's reliance upon 18 U.S.C. S 2(b) does
not change our analysis. That provision does not eliminate the
distinction between buyers and sellers, or between shippers
and receivers. It serves a different purpose: it insures that an
offender who utilizes an innocent agent to carry out a criminal
act but may not be charged as a principal underS 2(a), the
aiding and abetting provision, is not insulated from criminal
liability. See United States v. Causey, 835 F.2d 1289, 1292
(9th Cir. 1987) (purpose of S 2(b) is to allow offenders who
use innocent agents to perform illegal acts to be punished as
principals). While the government relies upon United States
v. Thomas, 893 F.2d 1066 (9th Cir. 1990), and United States
v. Michaels, 796 F.2d 1112, 1117-18 (9th Cir. 1986), those
cases both involve defendants who induced innocent parties
to mail contraband on their behalf. They stand for the princi-
ple that a defendant may be convicted as a principal even if
he uses another person as the agent to commit the crime. Such
a concept is entirely different from the theory urged by the
government in this case, which is essentially that, when a cus-
tomer orders illegal materials from a producer or supplier, the
ordering party has caused the supplying party's illegal act of
filling the order. The government's interpretation of 18 U.S.C.
S 2(b) would vest unconstrained discretion in prosecutors to
decide how to charge a large number of crimes that involve
actions by individuals who commit different offenses, and
might unwittingly render many provisions of criminal statutes
superfluous or duplicative.
A review of the published cases involving shipping or
transporting child pornography via computer reveals that
prosecutions are conducted in the manner that we have con-
cluded is required by the statute: in each case, individuals
convicted under S 2252(a)(1) had either sent the material elec-
tronically to another computer user or had made the material
available to others through an electronic bulletin board or
news group. See United States v. Hibbler, 159 F.3d 233, 235-
36 (6th Cir. 1998), cert. denied, 119 S.Ct. 1278 (1999) (defen-
dant convicted of violating S 2252(a)(1) had traded child por-
nography); United States v. Miller, 146 F.3d 1281, 1283 (11th
Cir. 1998), cert. denied, 119 S.Ct. 915 (1999) (defendant who
pled guilty to violation of S 2252(a)(1) had traded some
images, transmitting them by computer); United States v.
Coenen, 135 F.3d 938, 945 (5th Cir. 1998) (defendant who
pled guilty to four counts of violating S 2252(a)(1) had both
downloaded images from and uploaded images to Internet
news groups); United States v. Delmarle, 99 F.3d 80, 82 (2d
Cir. 1996), cert. denied,
519 U.S. 1156
(1997) (defendant
who pled guilty to violating S 2252(a)(1) admitted sending
images to others via electronic mail); United States v.
Thomas, 74 F.3d 701, 705-06 (6th Cir. 1996) (individual con-
victed under S 2252(a)(1) and other statutory provisions ran
bulletin board operation); United States v. Chapman, 60 F.3d
894, 895 (1st Cir. 1995) (defendant who pled guilty to violat-
ing S 2252(a)(1) had sent images to others through computer
network); United States v. Lamb, 945 F. Supp. 441, 445-46
(N.D.N.Y. 1996) (individual charged with violating
S 2252(a)(1) had transmitted and received images). In the
only case in which an individual who may have done nothing
more than download images was charged with violating
S 2252(a)(1), the defendant ultimately pled guilty only to a
violation of S 2252(a)(4), which makes possession unlawful.
See United States v. McBroom, 124 F.3d 533, 534 (3d Cir.
1997). With that one possible exception, individuals whose
sole criminal behavior has been to download pornographic
images have been charged not under S 2252(a)(1) but under
S 2252(a)(2) or S 2252(a)(4) (receipt or possession of child
pornography). See United States v. Muick, 167 F.3d 1162,
1164 (7th Cir. 1999) (defendant convicted of violation of
S 2252(a)(2) and S 2252(a)(4) for downloading child pornog-
raphy); United States v. Simpson, 152 F.3d 1241, 1244-45
(10th Cir. 1998) (defendant convicted under S 2252(a)(2) had
downloaded images); United States v. Black, 116 F.3d 198,
199-200 (7th Cir.), cert. denied, 118 S.Ct. 341 (1997) (indi-
vidual who distributed and received files charged under
S 2252(a)(2) and other statutory provision); United States v.
Kimbrough, 69 F.3d 723, 726-27 (5th Cir. 1995) (individual
who had downloaded images convicted under S 2252(a)(2));
United States v. Petersen, 25 F.Supp.2d 1021, 1022-23 (D.
Neb. 1998) (individual who pled guilty to violation of
S 2252(a)(2) had downloaded child pornography). Thus, our
interpretation of the differing provisions of S 2252(a) would
appear to be in accord with the uniform practices followed by
all other federal prosecutors.
[9] For the above reasons, the district court's denial of
Mohrbacher's motion for acquittal on counts one and two was
in error, and we reverse as to those counts.
III.
ACCEPTANCE OF RESPONSIBILITY
Because two of Mohrbacher's counts of conviction are not
challenged and will remain in effect, we also consider
whether the district court's denial of a downward adjustment
for acceptance of responsibility constituted an abuse of discre-
tion. Mohrbacher argues both that the district court improp-
erly punished him for exercising his right to trial and that the
court insufficiently explained the grounds upon which it
relied. In support of his argument that he was entitled to an
acceptance of responsibility adjustment, Mohrbacher cites his
immediate and extensive cooperation with government inves-
tigative efforts, his willingness to enter a plea agreement, his
failure to present any defense or contest any facts at trial, and
his contention that he only refused the offered plea agree-
ments because he could not admit to an untrue factual allega-
tion.
[10] It is clear that a judge cannot rely upon the fact that
a defendant refuses to plead guilty and insists on his right to
trial as the basis for denying an acceptance of responsibility
adjustment. See United States v. Vance, 62 F.3d 1152, 1157-
58 (9th Cir. 1995). Even a defendant who contests his factual
guilt at trial may, under some circumstances, be entitled to
such an adjustment. See United States v. Ing, 70 F.3d 553, 556
(9th Cir. 1995) (entrapment defense is not inconsistent with
downward adjustment for acceptance of responsibility);
United States v. McKinney, 15 F.3d 849, 852-53 (9th Cir.
1994) (defendant who had assisted authorities immediately
upon his arrest, attempted to plead guilty, and declined to call
any witnesses or raise an affirmative defense was entitled to
acceptance of responsibility credit despite contesting factual
guilt at trial through cross-examination of prosecution wit-
nesses). In the instant case, a number of factors were present
that would have supported an acceptance of responsibility
adjustment. Mohrbacher admitted his acts immediately upon
his arrest and cooperated with the government to discover
others' criminal activity; he initially pled guilty; and, at trial,
he called no witnesses and presented no evidence, relying
instead on minimal cross-examination of government wit-
nesses. See U.S.S.G. S 3E1.1 Application Notes 1(a) (truthful
admission of conduct that constitutes offense weighs in favor
of acceptance of responsibility); 1(e) (assistance to authori-
ties); 1(h) (timeliness of acceptance of responsibility).
[11] The district court, however, denied an acceptance of
responsibility adjustment to Mohrbacher because he refused
to admit to the intent element of the offense. While Mohr-
bacher did not testify at trial, at his sentencing hearing he
made numerous statements denying that he had realized that
he was downloading images of child pornography, statements
that manifested a continuing denial of the requisite criminal
intent. Such a refusal to admit one's guilt of the elements of
an offense permits a district court to exercise its discretion to
deny an acceptance of responsibility adjustment. See United
States v. Burrows, 36 F.3d 875, 883 (9th Cir. 1994) (uphold-
ing denial of acceptance of responsibility when defendant
"maintained even after trial that he had a complete defense
based on his purported lack of mens rea"); United States v.
Lindholm, 24 F.3d 1078, 1087 (9th Cir. 1994) (denial of
acceptance of responsibility was proper when defendant con-
tinued to believe that he was innocent and to deny fraudulent
intent, a central issue). Thus, the district court did not err in
that respect.
[12] Next, as long as we can determine that the district
court considered the defendant's objections and did not rest
its decision on impermissible factors, no specific explanation
of reasons is required for denying a defendant a downward
adjustment for acceptance of responsibility. See United States
v. Marquardt, 949 F.2d 283, 285-86 (9th Cir. 1991). While
the district judge did express some frustration at Mohr-
bacher's unwillingness to plead guilty, he specifically stated
that he was not punishing Mohrbacher for his decision to go
to trial, but was instead basing his denial of the downward
adjustment on the nature of the defense that Mohrbacher
raised at trial and was continuing to assert at sentencing.
Thus, the district court did not fail to explain its reasons ade-
quately.
In sum, the district court did not abuse its discretion in
denying Mohrbacher an adjustment for acceptance of respon-
sibility.
IV.
CONCLUSION
We therefore REVERSE Mohrbacher's conviction on
counts one and two but AFFIRM the district court's denial of
an adjustment for acceptance of responsibility.
REVERSED in part, AFFIRMED in part, and RE-
MANDED for further proceedings consistent with this opin-
ion.
_________________________________________________________________
NELSON, Circuit Judge, specially concurring:
The Government charged Mohrbacher under 18 U.S.C.
S 2252(a)(1), which governs transporting or shipping sexually
explicit materials rather than S 2252(a)(2), relating to receiv-
ing or distributing those materials. The argument is now
made, as it was in the district court, that downloading of the
images constituted "transporting" the illicit materials.
While it is possible to make a strained argument to that
effect, and it would be possible to write an equally strained
opinion affirming on the basis of the aiding and abetting pro-
visions of 18 U.S.C. S 2, I see no reason to encourage the
Government to prosecute people under the wrong statute. This
is particularly true when, as here, there is a perfectly clear
statutory provision which applies to the defendant's conduct
without the necessity of any interpretation. Therefore, I fully
concur in our decision. the end
_______________________________________________________________
FOOTNOTES
1 Mohrbacher's wife had recently died, and Mohrbacher told the court
that he felt that his involvement in this criminal case had caused her death
from a botched intubation procedure. Mohrbacher, a paramedic, would
have been able to perform the procedure had he not been away from home,
at a court appearance. Furthermore, during the week before the change of
plea hearing, Mohrbacher's daughter had attempted suicide.
2 In support of its contention, the government has presented two letters
that were sent to Mohrbacher which set forth its understanding that he was
not interested in negotiating and offered to engage in further discussions
in the event that it was mistaken about his position.
3 18 U.S.C. S 2(b) provides:"whoever willfully causes an act to be done
which if directly performed by him or another would be an offense against
the United States, is punishable as a principal."4 Other sources describe the act in similar terms. See BOB COTTON &
RICHARD OLIVER, THE CYBERSPACE LEXICON 66 (1994) ("Originally used to
describe the movement of information from a large computer to a smaller
one. Now used to describe the process of transferring data from one com-
puter system to another, or from a network or bulletin board to a personal
computer, or from a computer to an archiving storage device");
INTERNATIONAL BUSINESSMACHINES CORP., IBM DICTIONARY OF COMPUTING
217 (1994) ("To transfer programs or data from a computer to a connected
device, typically a personal computer . . . To transfer data from a computer
to a connected device, such as a workstation or microcomputer."); DAVID
MORSE, CYBER DICTIONARY (1996) ("To copy a file from a host system
(such as America Online or CompuServe) onto your computer, via tele-
phone lines and a modem.").
5 See also WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
UNABRIDGED 1894 (1986) ("to take back, take, accept, receive . . . to take
possession or delivery of . . . to knowingly accept . . . to take in: act as
a receptacle or container for . . . to come into possession of: acquire");
BLACK'S LAW DICTIONARY 1268 (6th ed.1990) ("To take into possession
and control; accept custody of; collect.").
6 See also WEBSTER'S THIRD, supra, at 2430 ("to transfer or convey from
one person or place to another: carry, move"); BLACK'S LAWDICTIONARY,
supra, at 1499 ("To carry or convey from one place to another.").
7 See also OXFORDENGLISH DICTIONARY 2D, supra, at 276 ("To send or
transport by ship . . . . to export . . . To transport (goods) by fail or other
means of conveyance"); BLACK'S LAW DICTIONARY, supra, at 1377 ("to
transport; to deliver to a carrier (public or private) for transportation. To
send away, to get rid of. To send by established mode of transportation,
as to `carry,' `convey,' or `transport,' which are synonymous and defined,
respectively, as `to bear or cause to be borne as from one place to another,'
and `to carry or convey from one place to another.' ").
8 The statute does not appear to require that the defendant ship or trans-
port the image to a third person. See United States v. Kemmish, 120 F.3d
937, 938 (9th Cir. 1997), cert. denied, 118 S.Ct. 1087 (1998) (affirming
defendant's conviction under S 2252(a)(1) after arrest for attempt to smug-
gle child pornography videotapes into United States).
9 The action of the bulletin board operator, on the other hand, cannot be
properly characterized as receiving images but only as transporting or
shipping -- unless the operator's conduct does not violate any provision
of the statute, as the government rather oddly suggested at oral argument.
While of course more than one individual could be held responsible for
transporting a given image, it is more difficult to claim that Mohrbacher
himself caused the images to be transported when one considers that the
bulletin board operator is in reality the individual who is primarily respon-
sible for the images moving from the bulletin board to individuals' com-
puters.
10 An examination of the legislative history of the statute does not pro-
vide any additional information. Congressional reports regarding the
enactment of S 2252 and subsequent amendments have also defined the
statutory purposes broadly and in general terms.See , e.g., S. REP. NO. 95-
948 *1 (1977); H. REP. NO. 98-292 (1983); CONF. REP. NO. 104-863 * 70-
72 (1996).
Ads by FindLaw