Florida’s 2nd DCA affirms “distribution” conviction of man using peer-to-peer software.
It’s one of the more mind boggling convictions we see. People being convicted of “distribution” of child pornography, even though they never actively sent it, knew it was being transmitted or communicating with the recipient.
It happens through the use of “peer-to-peer” software, which essentially shares folders on your computer with others on the world wide web. This peer-to-peer software (or “torrent”) can enable someone to reach in and grab files from others’ computers, and in turn, they can reach into your computer and grab files from yours.”
I see it this way… imagine you leave a baggie of marijuana sitting on your front passenger seat as you run into a convenience store to buy rolling papers. Someone walks by your car and sees the bag, reaches into your car and grabs it. Should you be convicted of distribution of a controlled substance? I would think not. If it was a police officer seeing the weed sitting there in plain site, perhaps possession, but to me, distribution would be a long shot.
Section 847.0137(2), Florida Statutes, provides that “any person in this state who knew or reasonably should have known that he or she was transmitting child pornography” commits the distribution felony. In a case decided in the 2nd District Court of Florida last week, the Court rejected the argument of a man who “did not dispute that he downloaded and looked at the images but contended that there was no evidence “he did something that caused [the videos] to be sent.”” and stated there is no requirement for an affirmative act of sending the image. By moving the video to a folder where it could be accessed, he “reasonably should have known that he was transmitting it”.
Interestingly, in this case, by the time law enforcement had seized his computer, the video had been deleted. It’s similar to many cases we hear about where someone downloads a bunch of stuff through a file sharing program, might not know everything that was downloaded, subsequently deletes the file once they discover what it is, and now find themselves on the registry.
the case is Jeror v State
The feds do this too.
Yep, one can even share their active downloads (and some p2p force this). Whether it’s physical material passed to someone or corrupt, deleted and recovered partial downloads, it all counts as “distribution.”
If it’s the state of Florida or a Federal case they make up their own rules…..Hubby was convicted of possession only of Child porn. No receipt of it. No downloading at all. Oh and he didn’t make it either. We had a so called friend stay with us. He put it on the computer with out our knowledge. Years later (5 or so) he got picked and made up god awful stories about hubby and when they came we had no clue. He was never arrested, just show up for court. Feds said they would get him for distribution, receipt, possession, they were going for a 55 years so he pled out and ended up with 5 years in and 10 on paper. We even paid an attorney 20 grand to help. Money wasted .
5 years is the mandatory minimum for receipt in the Feds.
In my husbands case they couldn’t charge with receipt. Sent computer to quantico verified video never opened and sat dormant for over 3 years. 1 video.
Jody, you and your hubby are not alone. Something similar happened to me. Feds didn’t care that someone else had was using the computer. I also got the threats of charges for receipt and possession and distribution. In the end, a jury found me guilty of simple possession. 6 years and lifetime supervision because I went to trial.
I have PTSD from the whole thing. Hubby does too. We had never had any interaction with any police except for 1 speeding ticket for me and a a few minor traffic for him 3 I believe in total). No arrest. Just a court date to plead guilty. The magistrate judge tried to talk him out of it. He said no because he couldn’t take the chance of 55 years. Lawyer said he will probably do a year. Nope. 5. We were devastated. They still do not leave as alone. He does everything everyone tells him too. He has served 50% of probation so he’s getting ready to apply to be left off early.
Jody, I have to be real with you. So please don’t take the following as raining down on your parade but the feds will resist early termination of your hubby’s supervised release. Their policy is to never allow that to happen. Just be prepared for it not to happen. Im sorry, but I’ve been fighting them for more than a decade on this.
Oh we’re ready for it. Probation backs it so does the mandatory sex offenders class counselor and we have a lawyer currently as well to help. But good thing is we are a little hopeful because he wasn’t suppose to be able to live with us on exit of prison and he has all but the 1st 2 months. We petitioned and he was deemed not a threat to his child. Plus probation and counselor are willing to send in a letter on his behalf.
Many districts AUSA offices have a policy of always opposing and some probation offices do too, but what some do is walk into court and say “Our office has a policy of opposing but this individual has been fully compliant and has been a model probationer so we will let the court decide.” People HAVE been terminated from probation early. In both the state and feds.
FAC, if you have knowledge of federal cases that have resulted in early termination then please email me those cases. I have been a model probationer too. No violations. Clean treatment reports and polygraphs. Stable home life. But the feds always oppose and the judge just goes along with it. I have spent more than 100 grand in my case. So, please send me some cases that my lawyer can research. You have my email. Thanks.
For what it’s worth, the “halfway mark on probation” is an unofficial measure that certain county courts use when considering a petition for early termination. It is NOT official. My advice is to seek a lawyer now so at the very least you can get the process started.
Also, there ARE Judges (in Florida) who are less concerned with votes and are quite fair in their decisions. Good luck to you both!
Sc, according to Jody’s first post, her hubby’s case was federal not state. That is a big difference. The feds will always fight to prevent early termination no matter the so called half way point you mentioned. As for the federal judges, they rarely if ever terminate SOs early from supervised release. I wish them both well, but I’ve passed more that 20 govt polygraphs and have been incident or violation free for almost almost 10 years of my lifetime supervision. There is no end. I dont want to be pessimistic but this is reality in the federal system
I am sure we are facing an upward battle. He was given only 10 on paper so worst comes to worst he’s done 5.5 technically we can do another 5 if we absolutely have to. We are hoping because po is on his side that is a little pull in our corner. I am sorry it’s been so bad for you.
My case was federal 26 years ago. Judge Departed from the sentencing guidelines and got no time just 3 yrs probation. NEVER had anyone come to the house for checks or anything nor did i ever spend a minute in a jail or in a cuff. All happened by mail and phone. Only took the plea to avoid trial as i couldnt afford a lawyer. Filly cooperated got 1 count of distribution no possession or anything as it didnt come from my computer but my account that i rented out (early 90s just making a buck had NO IDEA about this stuff) No community notification they kept their end of the deal in ny….. then i come to florida….. life over.
Dear SC, if you re-read Jody’s posts her husband’s case was/is federal. Because federal judges are appointed for life and never lose their jobs, they are not concerned about votes. They cannot be voted out of office. Hence, there is virtually no accountability in the federal system, which differs from state judges who are elected.
Bob:
I’ve had the opposite experience you alluded to. I’ve found that elected judges are faithful to their election donors interests, thus corrupt. Not all, but quite a few that go all the way up to state supreme courts. The doctrine of judicial absolute immunity eviscerates the overriding right of due process.
I agree, I suffered ptsd for many years afterwards. It’s will be 11 years in july. My whole family suffered. My 15 year old daughter was the only person in the house and they ransacked it. They wouldnt let my wife see her nor was there in type of female officer or child services at the time they raided my house. I did 2 1/2 years prob. and got off early with a very good attorney. I still have panic attacks thinking I left my GPS monitor somewhere just to realize ive been off it for years.
I can not imagine. The Agents at least let me call a family member to get our son before they questioned us. They were trying to get hubby on touching our son and when they came out after talking to our son the one agent was laughing and said there was no reason for them to actually be there. They asked my son if he was afraid of his dad and if he ever hurt him. They then asked if he ever made dad mad or if he was ever mad at his dad for something. Kid you not he says “ dad says fairly odd parents are disrespectful and I don’t like it when he says I can’t watch it.”
Sorry, but IMHO the conviction should NOT have been overturned.
To use peer-to-peer software, like the now infamous Napster, you, the user, have to designate which folders are shared and are willing to share those contents. So in this case, he knew what was in that folder (as he admitted to downloading the image(s), viewing it/them, and then saving it/them to his hard drive) and he knew that folder containing those image(s) was open to sharing. So he knew someone could go in, view it, and then copy it. He has no defense.
No, as much as I hate to see this happen, he did this to himself and deserves to be punished. For sheer stupidity if nothing else.
Second Kevin’s conclusion. I mean wtf the rest of us are fighting the battle while morons like this open our backsides to the enemy. This is nothing more than trying to hide your behavior behind a technicality and I have no sympathy for him, in fact I have just the opposite feeling. If you cannot get help and control for your problem then move out of Florida and stop making it harder on the rest of us.
Surprised at your comments. ALL here have made a bad or uninformed choice at one time or you wouldn’t be here? We are all in this hell together.
Old Karen: yes, I whole heartedly agree – we have made bad choices or we would not be here. The key is taking responsibility for our actions. Lets look at this scenario: this person may have downloaded the file(s) thinking they were something other then what they actually were; has happened to me. But after viewing it/them, he then knew what they were, knew it was illegal to posses said image/file, but he obviously liked what he saw, and made the choice to keep that file for his future viewing pleasure. That was a conscious act on his part. He knowingly broke the law right there. But then he compounded his criminal act by deciding to share that file with a P2P software. Now he’s trying to evade responsibility for his actions. No. Sorry. Not supporting that.
We are not here to support breaking the law. We are not here to avoid responsibility for our illegal actions. We are here to fight the retroactive punishments we are forced to live with. Or at least I am. And that’s what I understand FAC is all about. Hopefully I’m not wrong about that.
I do hear you. However, there is a difference between personally and morally taking responsibility and legally taking responsibility. It why we have the right to remain silent. Just because the person appealed something that there was no proof he was guilty up doesn’t mean he’s not accepting responsibility – it means he’s pursuing his legal rights
Sorry for all the typos – I have a bad habit of not checking my talk to text and it gets me in trouble 😂
Yes…isn’t it interesting how those judged have still not learned. Judge not lest you be judged.
Well, actually I know from experience you can choose to download but not share your folders. Here’s the clincher, LE confiscates the computer immediately and you then have no proof that you had sharing turned off. Also, contrary to popular belief (and I also know this from experience) the software LE uses to find people on P2P can “see” who downloads but if the person is sharing LE would know. My point is they would have iron-clad proof that the person was sharing – if they don’t then it should not be a charge. There shouldn’t be a question and the burden of proof is supposed to be on the prosecution not the accused.
We had Napster plus a few other peer to peer sharing programs. There was nothing in them but music and hubbys work files. If you don’t know how the program works you should never have it.
Nowhere in this case does he deny responsibility for his actions. In fact, there appears to be no dispute over the facts at all.
He DOES exercise his right to appeal his conviction for distribution, but that’s not the same thing as denying responsibility.
I hope he completes his sentence and treatment and becomes a productive member of FAC.