          United States Court of Appeals
                      For the First Circuit

No. 08-1343

                          UNITED STATES,

                            Appellee,

                                v.

                         MARK DAVID DYER,

                      Defendant, Appellant.


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]


                              Before

                        Lynch, Chief Judge,
              Torruella and Ripple*, Circuit Judges.


     William S. Maddox for appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney was on brief, for appellee.



                        December 28, 2009




     *
          Of the Seventh Circuit, sitting by designation.
           LYNCH,      Chief   Judge.          At   issue   is   the   meaning    and

application of a 2003 Sentencing Guideline for possessing child

pornography, § 2G2.4(c)(2), which instructed sentencing judges to

apply the stiffer penalties for trafficking in child pornography

cases "[i]f the offense involved trafficking in material involving

the sexual exploitation of a minor . . . including . . . possessing

material involving the sexual exploitation of a minor with intent

to traffic."      U.S.S.G. § 2G2.4(c)(2).            The issue is one of first

impression for this circuit.              The defendant, Mark David Dyer,

primarily argues that the sentencing judge erred in determining

that the evidence sufficed to establish he had an intent to traffic

in child pornography under § 2G2.4(c)(2) of the 2003 Sentencing

Guidelines, thus adding a minimum of thirteen additional months to

the defendant's Sentencing Guidelines range.                     Despite this, the

trial judge exercised his discretion to sentence below the range,

and sentenced Dyer to sixty months in prison, followed by eight

years of supervised release.

           Dyer pleaded guilty to possession of child pornography,

in   violation    of   18   U.S.C.   §    2252(A)(a)(5)(B).            The   original

guideline range for the total offense level under possession was

fifty-seven      to    seventy-one       months;     the    application      of   the

trafficking guideline made it seventy to eighty-seven months. Dyer

argues on appeal that the district court wrongly interpreted and

applied § 2G2.4(c)(2), the trafficking cross-reference.


                                         -2-
           He also argues that the district court relied upon ex

parte grand jury testimony to reach its factual conclusions and

thereby violated his rights under the Confrontation Clause.

           We disagree with both arguments and affirm his sentence

based on the facts of this case.

                                  I.

           The basic facts are undisputed.    On June 4, 2004, agents

of the Federal Bureau of Investigation (FBI) executed a warrant to

search the Brunswick, Maine residence of Mark David Dyer.           The

agents seized a computer hard drive and ten compact disks (CDs),

all of which were later found to contain numerous images of child

pornography.

           Later that day, Dyer consented to an interview with

Special Agents James Lechner and Paul Pritchard.       Dyer told them

that he owned the computer and the CDs and that no one else had

access to them.    The CDs, Dyer conceded, contained images that

would likely qualify as child pornography. He admitted that he had

downloaded what he estimated to be several thousand nude pictures

of twelve- or thirteen-year-old girls, had saved these images on

his computer, and had burned them onto CDs.         He obtained these

images, he told Agents Lechner and Pritchard, either by temporarily

joining subscription-only websites or through the use of the

LimeWire   peer-to-peer   file-sharing   program.    Dyer   used   these

methods once or twice a week to obtain new pornographic images of


                                 -3-
prepubescent girls aged fourteen or younger.     When asked about a

notebook seized during the search, Dyer explained that he had used

it to list common keywords like "pedo," "teen," and "pre-teen" that

he entered into LimeWire to find new files.

           Dyer had used LimeWire for two years and explained his

understanding of the program to Agents Lechner and Pritchard.    He

knew, he said, that when he downloaded photographs or videos from

LimeWire, the program saved the files in a "Completed Folder" on

his hard drive. This folder, Dyer noted, was automatically treated

as a "shared" folder by the LimeWire software.       Dyer knew that

anything he downloaded would therefore be available for other

LimeWire users to keyword search and download.   He also knew how to

stop the material from getting to other LimeWire users. To prevent

this file folder from being shared with other users, Dyer added, he

would have had to transfer the file to another location on his hard

drive.   He had not done so.

           Forensic analysis of Dyer's computer and CDs revealed

several hundred images of what appeared to be child pornography.

When the National Center for Missing and Exploited Children (NCMEC)

analyzed the images at the FBI's request, it determined that Dyer

had downloaded 952 photographs and four videos featuring known and

actual child victims of sexual exploitation.

           The most graphic of these images was a series featuring

a single prepubescent girl.    The NCMEC confirmed, and Dyer did not


                                 -4-
dispute, that the girl featured in these images was an actual child

and a known victim of sexual abuse.       One of the photographs in the

series showed an adult male urinating on the young girl.                In

another photograph, the girl had been posed on a bed naked, with

the words "cut me," "hurt me," and "slut" written across her torso.

The image also showed someone holding a knife near her vagina.

This image was saved under the file name "PTHC, Ultra Hard Pedo

Child Porn Pedofilia (New) 061.JPEG."        Dyer had stored the entire

series featuring the girl in the "shared" folder on his computer

hard drive, making it available to all LimeWire users.

          Other files in Dyer's "shared" folder had titles such as

"pthc_kely&camila07 young girls rub pussies together.jpg"; many

included the acronym "pthc," standing for "pre-teen hard-core," in

the title.

          An August 22, 2007 indictment charged Dyer with knowingly

possessing     child   pornography   in    violation     of   18    U.S.C.

§ 2252A(a)(5)(B).1     On November 28, 2007, Dyer pleaded guilty to

this charge in the federal district court of Maine.

          The court applied the 2003 version of the Sentencing

Guidelines in order to avoid ex post facto considerations.            The

pre-sentence    report   (PSR)   submitted    to   the   district   court

calculated a total offense level of 25 under the 2003 Sentencing


     1
          The government also charged Dyer with transportation of
child pornography but ultimately asked the trial judge to dismiss
this count.

                                  -5-
Guidelines.     The PSR used U.S.S.G. § 2G2.4, which applied to

defendants convicted of possession of child pornography and carried

a base offense level of 15, and adjusted the sentence upwards to

reflect a number of relevant enhancements.2

           At the pre-sentence conference, the government argued

that the PSR should have applied the trafficking cross-reference in

U.S.S.G.   §   2G2.4(c)(2)   and   should   have   therefore   used   the

trafficking provision rather than the possession provision to

calculate Dyer's base offense level for sentencing.       The sentence

enhancement under the trafficking cross-reference should have been

imposed, the government contended, because Dyer had manifested an

intent to distribute the child pornography on his computer by

making it accessible to other LimeWire users.         Dyer argued that

leaving files on a shared computer folder did not qualify as

"trafficking" and that, in any event, there was insufficient

evidence that he had intended to traffic in child pornography.3

           At the sentencing hearing on March 13, 2008, Agent

Lechner testified and was cross-examined regarding his interview

     2
          Specifically, the PSR calculated a two-level enhancement
for materials involving a prepubescent minor, another two-level
enhancement for possession involving the use of a computer, a four-
level enhancement for possession of images involving sadism and
masochism, and a five-level enhancement for possession of over 600
images.    The PSR also adjusted for Dyer's acceptance of
responsibility, resulting in a final offense level of 25.
     3
          Dyer also contested the recommended enhancements for
possession of sadistic images and for possession of more than 600
images. He does not, however, challenge these enhancements, which
the court applied, on appeal.

                                   -6-
with Dyer.   Lechner described his role in the search of Dyer's

residence, his subsequent interview with Dyer, and the FBI's

ultimate conclusions regarding the quantity and nature of the

images of child pornography discovered on Dyer's computer and CDs.

He testified that Dyer had said during the interview that he

understood that the child pornography downloaded onto his shared

drive would be made available to other LimeWire users.         The

government also introduced Lechner's contemporaneous report of the

interview into evidence. The report included Dyer's admission that

he knew how to prevent the files from being shared.   He had opted

not to disable this feature. Another exhibit displayed the results

of the forensic analysis of Dyer's computer and a selection of the

more graphic images discovered in Dyer's "shared" folder. Dyer did

not introduce any evidence at sentencing.

          On the basis of this evidence and a Fifth Circuit case

involving similar facts, United States v. Todd, 100 F. App'x 248

(5th Cir. 2004), the district court applied the trafficking cross-

reference in U.S.S.G. § 2G2.4(c)(2).    However, it did so on the

basis of the specific facts of the case and implicitly rejected the

government's argument that any use of LimeWire would automatically

constitute trafficking due to the program's file-sharing features.

"Trafficking," the sentencing judge noted, included bartering, and

Dyer had exhibited an "intent to traffic" by knowingly making

images of child pornography available to other LimeWire users. The



                               -7-
sentencing judge emphasized the facts essential to this conclusion:

Dyer had told Agent Lechner that he knew that any file downloaded

from LimeWire would be available to other users; he knew where

LimeWire stored the files he downloaded on his computer, and that

they could be accessed and downloaded by other LimeWire users; he

knew that he could have moved the file to a different location to

prevent other users from accessing it; and he had used LimeWire for

two years, during which he downloaded files and had his own files

available for download.          These acts, the sentencing judge found,

demonstrated      an    intent    to   traffic   within   the    meaning   of

§ 2G2.4(c)(2).         The sentencing judge also determined that this

conclusion was consistent with Congress's intention to punish those

who furthered the market for child pornography more severely,

reasoning that file-sharing was qualitatively different from mere

possession   of    files    on    an   inaccessible   computer   hard   drive

location.

            In calculating Dyer's sentence, the sentencing judge

emphasized that Dyer had pleaded guilty to an exceptionally serious

offense that involved the sexual abuse of real children.             But the

sentencing judge also acknowledged that Dyer had received an

honorable discharge from the United States Navy and was a first-

time offender who had shown remorse and a willingness to undergo a

sex offender treatment program.          Dyer's total offense level under

the Guidelines was twenty-seven, which would ordinarily result in



                                       -8-
a prison sentence of between seventy and eighty-seven months.

However, in light of Dyer's character and circumstances, the

sentencing judge imposed a below-Guidelines sentence of sixty

months in prison, followed by eight years of supervised release.

           Dyer now appeals this sentence.

                                       II.

A.         Interpretation of Guidelines Terms

           Dyer's main argument on appeal is that the facts of his

case supported only the application of the guidelines pertaining to

possession of child pornography, and not "trafficking."                        The

district court's interpretation of the meaning of an "intent to

traffic"   under   §   2G2.4(c)(2)     and     of    the   cross-reference     are

questions of law, which we review de novo.                 See United States v.

Cruz-Rodriguez, 541 F.3d 19, 32 (1st Cir. 2008).                   We review the

district   judge's     findings   of    fact    for    clear   error,    and   the

government must prove facts essential to sentencing enhancements by

a preponderance of the evidence.         Id.        at 31 & n.8.

           The issue before us is not whether mere use of LimeWire

by one who possesses child pornography shows an intent to traffic

simply because LimeWire is a file-sharing program.                 The government

has withdrawn that argument and the district court did not adopt

it.   Rather, the outcome of this case depends upon the particular

facts and not on a per se rule.         Dyer's challenge raises issues of




                                       -9-
interpretation of both "intent" and "traffic," but ultimately turns

on the facts.

           The      Guidelines   set     forth     a   distinction    between

"possession" of and "trafficking" in child pornography as those

terms are used in U.S.S.G. §§ 2G2.4 and 2G2.4(c)(2). Dyer suggests

a series of limitations on the definition of trafficking, which we

reject.    To define the kind of acts that constitute "trafficking"

as   opposed   to   mere   possession,    we     employ   ordinary   rules   of

statutory construction.      See United States v. Luna-Diaz, 222 F.3d

1, 3-6 (1st Cir. 2000) (looking to the text, guideline commentary,

statutory context, and use of similar language in criminal statutes

to interpret the meaning of a term in U.S.S.G. § 2L1.2); United

States v. DeLuca, 17 F.3d 6, 10 (1st Cir. 1994) (holding that the

Sentencing Guidelines should be interpreted according to principles

of statutory construction).

           The text of the 2003 Sentencing Guidelines separated

sentencing for the possession and trafficking of child pornography

into two distinct subsections.         Sentencing judges were to apply

U.S.S.G. § 2G2.2 to defendants convicted of trafficking in child

pornography; receiving, transporting, shipping, or advertising such

material; or possessing such material with an intent to traffic.

This guideline carried a base offense level of 17.                   U.S.S.G.

§ 2G2.2.   By contrast, U.S.S.G. § 2G2.4 prescribed a base level of




                                   -10-
15 for defendants convicted only of possessing child pornography.

U.S.S.G. § 2G2.4, subject to the condition we describe next.

             The condition is that a cross-reference in the possession

guideline, § 2G2.4(c)(2), mandated that "[i]f the offense involved

trafficking in material involving the sexual exploitation of a

minor (including receiving, transporting, shipping, advertising, or

possessing material involving the sexual exploitation of a minor

with intent to traffic)," then the sentencing judge was to use

§   2G2.2,        the   trafficking     guideline,    instead.          U.S.S.G.

§ 2G2.4(c)(2).4

             As    a    result,   the   plain   language   of    §   2G2.4(c)(2)

unambiguously extended the trafficking cross-reference both to

defendants who actually trafficked in child pornography and to

defendants who possessed child pornography with the intent of

trafficking but had not yet completed the act.                  In other words,

this trafficking cross-reference, by its terms, could be imposed

even absent evidence that others received child pornography from

the defendant.



     4
          Subsequent amendments to the Guidelines consolidated
these offenses into a single subsection, with provisions for
sentencing enhancements and reductions depending upon the extent to
which a defendant's conduct went beyond mere possession.        See
U.S.S.G. § 2G2.2 (2004) (Trafficking in Material Involving the
Sexual Exploitation of a Minor; Receiving, Transporting, Shipping,
Soliciting,   or   Advertising   Material   Involving  the   Sexual
Exploitation of a Minor; Possessing Material Involving the Sexual
Exploitation of a Minor with Intent to Traffic; Possessing Material
Involving the Sexual Exploitation of a Minor).

                                        -11-
          The   government   needs    only   to   demonstrate   by   a

preponderance of the evidence that a defendant possessed the

requisite "intent to traffic." See, e.g., United States v. Jordan,

111 F. App'x 65, 68 (2d Cir. 2004).    Dyer unsuccessfully advances

limitations, not in the text, on what "intent" means and on what

"traffic" means.    We, like the Second Circuit in Jordan, reject

Dyer's argument that the cross-reference in § 2G2.4(c)(2) governed

only when the government proved that the defendant actually engaged

in trafficking and did not merely intend to do so.5    We also reject

Dyer's argument that the government must show that third parties

actually retrieved and downloaded images from defendant's computer

to show that the defendant had an intent to traffic.

          First we address the legal arguments about the meaning of

the terms "traffic" and "intent"; we then turn to whether, in light

of those meanings, the facts sufficed to meet those definitions.

1.        Meaning of "Traffic" under § 2G2.4(c)(2)

          Because the 2003 Guidelines do not define the term

"traffic," we interpret this word by looking to its commonly

accepted meaning.    See DeLuca, 17 F.3d at 9.        To traffic in

something commonly means [t]o "trade or deal in (goods, esp.


     5
          While Jordan was an unpublished Second Circuit opinion,
we consider it to be persuasive authority since it squarely
addressed the same argument made by the defendant in the present
appeal.   See Sec. Ins. Co. of Hartford v. Old Dominion Freight
Line, Inc., 314 F. Supp. 2d 201, 203 n.1 (S.D.N.Y. 2003) (treating
Second Circuit unpublished opinions "at least" equivalent in
authority to law review notes).

                               -12-
illicit drugs or other contraband)," Black's Law Dictionary 1634

(9th ed. 2009), or to engage in "the activity of exchanging

commodities by bartering or buying and selling," Webster's Third

New International Dictionary 2422 (1993).

            At oral argument, defendant argued that mere trading or

bartering of child pornography is not trafficking.                We reject the

argument. We also reject the argument that a defendant must expect

some    financial    gain    from     trafficking.      In      the   context   of

§ 2G2.4(c)(2), a defendant traffics in child pornography if he

engaged or intended to engage in an exchange or trade of such

images.    No financial gain or expectation of financial gain is

necessarily required. See United States v. Todd, 100 F. App'x 248,

250 (5th Cir. 2004), vacated on other grounds, 543 U.S. 1108 (2005)

(noting   that   "trafficking"        ordinarily    means    "both    buying    and

selling   commodities       for    money   and    exchanging     commodities     by

barter"); United States v. Parmelee, 319 F.3d 583, 594 (3d Cir.

2003)   (observing    that        "trafficking"    under    §    2G2.2   includes

bartering); United States v. Johnson, 221 F.3d 83, 98 (2d Cir.

2000) (same); United States v. Horn, 187 F.3d 781, 791 (8th Cir.

1999) ("Section 2G2.2 and the cross reference in § 2G2.4(c)(2)

apply when the offense involved the exchange or barter of [child

pornography], and not only . . . when this material was offered for

sale."). These cases confirm that the crucial acts separating mere




                                       -13-
possession from trafficking involve the intent to share images of

child pornography with others, irrespective of financial motive.

            This interpretation is also borne out by the legislative

history    of   the    1977    Protection       of    Children     Against       Sexual

Exploitation Act (Act), which was amended in 1996 to include 18

U.S.C. § 2252A. See Child Pornography Prevention Act of 1996, Pub.

L. No. 104-208, 121, 110 Stat. 3009, 3009-26 to 3009-4 (codified as

amended in 18 U.S.C. § 2251, 2252-2252A, 2256 and 42 U.S.C.

§ 2000aa); see also United States v. Sromalski, 318 F.3d 748, 751-

52 (7th Cir. 2003) (finding that § 2G2.2 and related guidelines

should be interpreted in relation to the harms Congress identified

when    passing    this      Act).       Section      2252A     includes     separate

subsections prohibiting the distribution, sale, and possession of

child     pornography,    with       a   further      section    prohibiting        the

distribution of child pornography to minors with the intent of

inducing them to participate in illegal activities.                  See 18 U.S.C.

§   2252A(a)(1)-(6).          For    purposes    of    punishment,      §    2252A(b)

distinguishes between possession and all other offenses, mandating

a maximum sentence of 10 years for possession and a sentence

between five and twenty years for all other offenses.                        See id.

§ 2252(b)(1)-(2).

            The rationale underpinning the 1996 amendments, Congress

said,     was   that   the     dissemination         and   production       of    child

pornography differs from possession because active participation in



                                         -14-
the market for child exploitation encourages further exploitation

of children to an even greater degree.          See H.R. Rep. No. 104-863,

at   28-29    (1996)   (Conf.   Rep.);    see    also   United   States   v.

Grosenheider, 200 F.3d 321, 332-33 (5th Cir. 2000) (footnote

omitted) ("It is clear that Congress established a series of

distinctly separate offenses respecting child pornography, with

higher sentences for offenses involving conduct more likely to be,

or more directly, harmful to minors than the mere possession

offense.     Similarly, the guidelines clearly reflect consideration

of whether and the degree to which harm to minors is or has been

involved.").

             Congress further found that child pornography victimizes

children not only at the time of actual abuse but each time the

image is accessed and distributed anew, since "its continued

existence causes the child victims of sexual abuse continuing harm

by haunting those children in future years."            H.R. Rep. No. 104-

863, at 28. By this metric, trafficking is qualitatively different

from mere possession--and warrants heavier sanctions.             It makes

these images available to new viewers and keeps an image of

exploitation in circulation, and thus may encourage the growth of

a market leading to further exploitation.          See New York v. Ferber,

458 U.S. 747, 756-59 & n.10 (1982); United States v. Hoey, 508 F.3d

687, 692-93 (1st Cir. 2007).




                                   -15-
            Second, the legislative history unequivocally shows that

"trafficking" in child pornography means bartering these materials

even when no financial stake is involved.              In 1984, Congress

expressly found that the child pornography market was dominated by

collectors   who    bartered   pornographic   images    to   expand   their

collections and had little interest in trading for profit.              See

H.R. Rep. No. 98-536, at 16-17 (1984); see also United States v.

Morales-De Jesús, 372 F.3d 6, 11 (1st Cir. 2004) (explaining that

Congress eliminated the commercial purpose requirement because of

the prevalence of child pornography distributors who shared images

with each other with no pecuniary motivation).         Concerned that the

Act   was   being   under-enforced,   Congress    amended    the   statute

specifically to ensure that it extended to these collectors.            See

Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204

(codified as amended at 18 U.S.C. §§ 2251, 2252, 2253); see also

H.R. Rep. 98-536 at 2 (1983).         Because "the harm to the child

exists whether or not those who initiate or carry out the schemes

are motivated by profit," Congress deliberately broadened the scope

of the Act to better serve its purpose.       H.R. Rep. 98-536, at 2-3.6



      6
          As we observed in Morales-De Jesús, we consider the
legislative history and the congressional findings of prior
iterations of the Act relevant to its present meaning, since "when
Congress previously passed related legislation accompanied by
applicable findings, subsequent legislation was 'presumably based
on similar findings and purposes with respect to the areas newly
covered.'" 372 F.3d at 10 n.2 (quoting Maryland v. Wirtz, 392 U.S.
183, 190 n.13 (1968)).

                                  -16-
               Based on this analysis, we conclude that the district

court properly interpreted the trafficking cross-reference under

§ 2G2.4(c)(2) to include situations in which a defendant intended

to exchange child pornography without any commercial purpose.

2.             Meaning of "Intent" Under § 2G2.4(c)(2)

               Before the district court, Dyer never used the term

"specific intent" to set forth the legal requirements for applying

§ 2G2.4(c)(2), and has waived the argument.                As a result, the

district court did not directly comment on the meaning of the term

"intent" as used in § 2G2.4(c)(2).            It rather concluded that in

light of the specific facts concerning Dyer's use of LimeWire, the

intent requirement had been met.         Dyer raises for the first time on

appeal    the    argument   that   §   2G2.4(c)(2)   requires     evidence   of

specific intent, but only in passing and without any legal argument

to support this assertion.             This argument is twice waived on

appeal.       We accordingly review it for plain error.         We find there

was no error of law, and we reject a reading of § 2G2.4(c)(2) that

would require specific intent to traffic in child pornography.

               This court recently emphasized the challenges in defining

the term "intent" when it is used to denote an element of a crime.

See United States v. Tobin, 552 F.3d 29, 32 (1st Cir. 2009) ("'Few

areas    of    criminal   law   pose   more   difficulty   than   the   proper

definition of the mens rea required for any particular crime.'")

(emphasis original) (quoting United States v. Bailey, 444 U.S. 394,



                                       -17-
403 (1980)).             In Tobin, we interpreted "intent" as used in a

criminal statute prohibiting harassing phone calls by employing

principles of statutory construction and looking to plain meaning,

statutory structure, and legislative history.                         When these indicia

were inconclusive, we turned to "general considerations," namely

the principle that for most crimes, "intent" ordinarily requires

only that the defendant reasonably knew the proscribed result would

occur    (general         intent),     not     that       the    defendant     specifically

intended such an outcome as his purpose (specific intent).                             Id. at

33 (citing Bailey, 444 U.S. at 404); see also United States v.

Pitrone, 115 F.3d 1, 5 (1st Cir. 1997) (observing and applying the

rule that when the text of a criminal statute is indeterminate,

courts should look to context, including purpose, legislative

history, and "background legal principles," to discern the kind of

intent Congress had in mind).

               We    then      reasoned      that    this       principle    that    "intent"

ordinarily means general intent would have less force in some

situations where the consequences of the action are not necessarily

wrong     or        harmful.          Thus,        when     interpreting        47    U.S.C.

§ 223(a)(1)(D), which prohibits making repeated phone calls to the

same    number       with      an   intent    to     harass,      Tobin     held    that   the

government must prove the defendant specifically intended to harass

the    person       at   the    called    number      because       "[t]here    is   nothing




                                              -18-
inherently wicked or even suspect about multiple phone calls"

absent the wicked intention motivating them.     Id.

           "Intent" has at least two possible ordinary meanings in

the criminal context, referring either to the fact that a defendant

purposefully and affirmatively desired an unlawful outcome or,

alternatively, to a defendant's reasonable knowledge that his acts

might result in such an outcome.    See Bailey, 444 U.S. at 403-04.

           The texts of § 2G2.4 and § 2G2.2 are not explicit on what

kind of scienter requirement the Commission intended.               While

§ 2G2.2 pertains to trafficking and § 2G2.4 is predominantly

concerned with possession, both guidelines penalize conduct that

Congress has deemed inherently harmful.         That the Guidelines

enhance punishment for both actual trafficking and for intent to

traffic suggests the Commission intended to enhance penalties for

those whose actions support the market for child pornography and

for those who should reasonably know that their conduct would do

so.   There is no indication that the Commission intended to depart

from the ordinary meaning of the term "intent."      Further, there is

every reason to think the Commission was, in this understanding of

intent,   carrying   out   congressional   intent.     Certainly,    the

Commission chose not to use alternate language which would have

required specific intent.

           The dissent incorrectly argues that the phrase "with

intent to" is a term of art that mandates the conclusion that



                                 -19-
§ 2G2.4(c)(2) requires proof that a defendant specifically intended

to traffic in child pornography.         That argument is undercut by

Bailey, which noted that "the word 'intent' is quite ambiguous"

when interpreting what the court of appeals had meant when using

that precise phrase.      444 U.S. at 633.      The use of the words

"intent to traffic" does not by itself signify specific intent, as

numerous other courts have found in other contexts.     For instance,

18 U.S.C. § 2320 punishes anyone who, inter alia, "intentionally

traffics or attempts to traffic in goods or services and knowingly

uses a counterfeit mark on or in connection with such goods or

services."   18 U.S.C. § 2320(a)(1).     Other circuits have held that

specific intent was not required for culpability, on the grounds

that specific intent requirements are not ordinarily prerequisites

in criminal offenses and the legislative history did not support

such an interpretation.    See, e.g., United States v. Gantos, 817

F.2d 41, 42-43 (8th Cir. 1987).     Likewise, the Second Circuit has

interpreted 18 U.S.C. § 479, which makes it a crime to "knowingly

and with intent to defraud, utter[], pass[], or put off, in payment

or negotiation, any false, forged, or counterfeited" foreign bonds,

only as a general intent crime.    See United States v. Mucciante, 21

F.3d 1228, 1235 (2d Cir. 1994).7


     7
          One circuit has also held that 18 U.S.C. § 115(a)(1)(B),
which prohibits threats of assault, kidnaping, or murder against
federal officials, judges, and law enforcement officers "with
intent to" inhibit their official duties or "with intent to"
retaliate against them, is a general or specific intent crime. See

                                  -20-
           Indeed, treating such language as per se imposing a

specific intent requirement runs counter to the careful, context-

specific weighing of text, structure, legislative history, and

general considerations that we have long employed and is contrary

to our analysis in Tobin.

           The legislative history, in turn, supports a reading that

intent in the sense of knowledge suffices.      Congress described the

evils of the child pornography market by focusing on the child

victims involved, not by distinguishing between the motives of

purveyors.     Trafficking   in   child   pornography    has   an   equally

horrific effect upon the children involved irrespective of whether

the trafficker actively desires or merely knows that his actions

will likely make images of child pornography more available to

others.   That Congress eliminated the requirement that traffickers

in child pornography could only be prosecuted if they were acting

with a commercial purpose underscores Congress' understanding that

such conduct is culpable regardless of the underlying motive.          See

H.R. Rep. 98-536, at 16-17.

           We also turn to the "general considerations" explained in

Tobin.    These considerations strongly confirm that § 2G2.4(c)(2)

does not require specific, purposeful intent.           We should instead

rest upon the default assumption discussed in Bailey and elsewhere


United States v. Ettinger, 344 F.3d 1149, 1156 (11th Cir. 2003);
but see United States v. Veach, 455 F.3d 628, 631-32 (6th Cir.
2006) (requiring specific intent); United States v. Stewart, 420
F.3d 1007, 1017 (9th Cir. 2005) (same).

                                  -21-
that an intent to traffic in child pornography, like most other

crimes, requires only general intent.       Unlike the repeated phone

calls at issue in Tobin, sharing child pornography qualifies as

inherently bad conduct.        Indeed, Tobin itself makes this exact

distinction.   Another subsection of the statute at issue in Tobin

prohibited making phone calls if those calls involved content that

could be considered child pornography, with the intent to harass

another person.      Tobin stated that this subsection "involve[d]

suspicious or even malign conduct" and concluded that unlike the

provision at issue, "intent" in this subsection meant only "mere

knowledge of consequences."      Tobin, 552 F.3d at 33.8

          Further,    courts    are   ordinarily   concerned    with   the

distinction between specific and general intent when defining

elements of a crime in order to put defendants on notice of where

the line between culpable and innocent conduct falls.          See, e.g.,

Carter v. United States, 530 U.S. 255, 268-69 (2000).            No such

concern applies at sentencing.        Courts routinely interpret the

Sentencing Guidelines by looking at related conduct beyond the

specific elements of a criminal offense, because the purpose is to


     8
          While we have recognized that the crime of possession of
a controlled substance with intent to distribute requires proof
that the defendant specifically and purposefully intended to
traffic in drugs, that conclusion resulted from statutory language
that includes the phrase "knowingly or intentionally" and by
concerns with overbreadth. See, e.g., United States v. Hassan, 542
F.3d 968, 979 (2d Cir. 2008); United States v. Caseer, 399 F.3d
828, 839 (6th Cir. 2005). Both of those concerns are inapplicable
in the present context.

                                  -22-
assess the severity of the defendant's particular crime in light of

the surrounding circumstances.                See Witte v. United States, 515

U.S. 389, 402-03 (1995).           In so doing, courts are not punishing a

defendant for a distinct offense; they are instead evaluating the

totality    of    a     defendant's     conduct       in   order     to    arrive       at    a

reasonable sentence. See United States v. Amirault, 224 F.3d 9, 15

(1st Cir. 2000) (holding that a sentencing court can look to past,

uncharged    conduct       to   impose    an     aggravated         sentence      for     the

possession of child pornography because such conduct bears upon the

gravity of the possession offense).

            We therefore reject the defendant's argument that the

government       must    necessarily     show     the      defendant       actively       and

subjectively       desired      that    others    would      get    images     of    child

pornography from him and that ordinary general intent does not

suffice.

B.          Application of "Intent to Traffic" in This Case

            We consider the district court's application of this

guideline to the facts of this case to be a mixed question of law

and fact, which we review using a sliding standard of review.                                We

review predominantly legal questions de novo, while we defer to

fact-driven determinations and review them for clear error.                               See

United States v. Sicher, 576 F.3d 64, 70-71 & n.6 (1st Cir. 2009).

The district court's application of § 2G2.4(c)(2) in this case was

heavily    fact-dependent,        and    we    find     that   it    did    not     err      in


                                         -23-
concluding that Dyer's online conduct showed an "intent to traffic"

under § 2G2.4(c)(2).   We would reach this conclusion even if we

were to review the district court's application of § 2G2.4(c)(2) de

novo.

          The Internet, and its capacity to facilitate online

bartering of computer files between collectors and purveyors of

child pornography, readily links a single computer user to a

possible network of others.    See United States v. Lewis, 554 F.3d

208, 210 (1st Cir. 2009).     It is clear that for there to be any

meaningful distinction between the crimes of possession and the

enhancement for intent to traffic, more than mere receipt of child

pornography on a computer must be shown for § 2G2.4(c)(2) to apply.

Sromalski, 318 F.3d at 751-52.   Other circuits have held that this

cross-reference applies to defendants who arranged to exchange

images of child pornography with others over e-mail or by posting

these images in an online chatroom.     See, e.g., United States v.

Bender, 290 F.3d 1279, 1285 (11th Cir. 2002) (applying cross-

reference to defendant who traded child pornography over email);

United States v. Johnson, 221 F.3d 83, 98 (2d Cir. 2000), cert

denied, 533 U.S. 953 (2001) (applying 2G2.4(c)(2) to defendant who

conceded that he "sen[t] and received" images of child pornography

on his computer).

          We do not decide whether the use of file-sharing software

such as LimeWire per se would have qualified as trafficking under


                                 -24-
§ 2G2.4(c)(2).     Our holding centers on the facts of this case.                      As

the   sentencing      judge     emphasized,      Dyer   chose    to     download      and

frequently use LimeWire, a type of peer-to-peer software that

creates a shared system of users, and he did so to acquire images

of child pornography for his personal collection.9                     He downloaded

these files into a "shared" folder that he knew would be made

available   to   others.         He   did   so    for   two    years    and    gave    no

indication to Agents Lechner and Pritchard that he would have

stopped had he not been arrested.                 He knew how to turn off the

"sharing"   feature        of   LimeWire    and    prevent      other     users    from

accessing these features, but he did not, at any point, make an

effort to do so.        By his actions, Dyer took deliberate steps to

become    part   of    a    virtual    community        of    consumers       of   child

pornography who shared images to enlarge their own collections.

Our holding that these acts showed an "intent to traffic" likewise

comports with the holdings of other circuits on similar fact

patterns.    See United States v. Groenendal, 557 F.3d 419, 423-24

(6th Cir. 2009) (holding that the defendant engaged in trafficking


      9
          We have previously discussed LimeWire's functions at
length. LimeWire "is a peer-to-peer file sharing application that
connects users who wish to share data files with one another."
Lewis, 554 F.3d at 211.     When a user downloads LimeWire, the
program creates a new folder on his computer where any files
downloaded from LimeWire will be saved. LimeWire designates this
as a "shared" folder, meaning that its contents will automatically
be available to other users. Users can locate and download these
files free of charge by entering search terms describing the
desired content.    When a user downloads a copy of the file,
LimeWire saves it in the user's "shared" folder. Id. at 211.

                                        -25-
under     §   2G2.4(c)(2)   when   he    posted   images   online   to   child

pornography-trading group); Todd, 100 F. App'x at 250 (finding that

"[b]y downloading the images and making them accessible to others,"

defendant      became   eligible        for   sentencing   pursuant      to   §

2G2.4(c)(2)).10

              To be clear, we do not today reach the abstract issue of

whether any LimeWire user who downloaded child pornography could

have been sentenced under § 2G2.4(c)(2) because of LimeWire's

inherent file-sharing features and purposes.               Dyer, by his own

admission, was differently situated from an unwitting LimeWire user

who failed to realize that by downloading files, he was also saving

them to a "shared," universally accessible folder on his own

computer.       On the facts of this case, the district court was

correct to conclude that Dyer's conduct warranted the application

of § 2G2.4(c)(2).

                                    III.

              Finally, Dyer asserts that the district court relied upon

Agent Lechner's testimony before a grand jury to conclude that Dyer

knew that he could have made child pornography files unavailable to


     10
          Moreover, these facts would be sufficient for us to find
an intent to traffic even if § 2G2.4(c)(2) were read to require
specific intent. Dyer's long-term, purposeful use of LimeWire, his
deliberate failure to turn off the file-sharing function, and his
awareness that other users could download child pornography from
his "shared" folder could reasonably be found to amount to a
specific intent to share these images with other users, not just
knowledge that such a result was the likely consequence of his
actions.

                                    -26-
other LimeWire users by transferring the files to another location.

This, Dyer claims, violated his Confrontation Clause rights because

the grand jury testimony was never part of the record and because

he had no chance to challenge that testimony during the sentencing

hearing.

            This    argument   lacks    merit,   not    least   because    the

Confrontation Clause does not apply at sentencing.                  See United

States v. Luciano, 414 F.3d 174, 178-79 (1st Cir. 2005).

            Further, Dyer failed to raise this argument before the

district court, and any claim would therefore have to rise to the

level of plain error to warrant reversal.              See United States v.

Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005).                There is no

possibility of plain error in this case. Dyer presents no evidence

that the district court relied upon Lechner's grand jury testimony.

Moreover, Dyer's counsel effectively cross-examined Agent Lechner

about    Dyer's    understanding   of   file-sharing     at   the   sentencing

hearing.    Beyond this, the district court's conclusion that Dyer

knew he could have disabled the sharing feature is supported by a

number     of   documents   throughout     the   record,      including    the

government's Exhibit A at sentencing.            That exhibit, in fact,

explicitly summarized Agent Lechner's conclusion from his interview

with Dyer that Dyer knew "you would have to physically move the

file to another location to make it unavailable for sharing."

            The sentence is affirmed.



                                    -27-
-Concurring and Dissent Opinion Follows-




                  -28-
             TORRUELLA,   Circuit   Judge    (Concurring      in    part    and

Dissenting in part). I dissent from the majority's conclusion that

Appellant Mark David Dyer ("Dyer") was properly sentenced under

U.S.S.G. § 2G2.4(c)(2) for possession of child pornography with

intent to traffic.     I write separately to state my conclusion that

§   2G2.4(c)(2)    requires   specific     intent    to   traffic   in     child

pornography and to note that the facts of this case fail to

establish that Dyer exhibited specific intent to traffic in child

pornography.      I join the majority in rejecting Dyer's claim that

the sentencing court violated his Sixth Amendment right to confront

the witnesses presented against him.

        I.    U.S.S.G. § 2G2.4(c)(2) requires specific intent

             The determination of the sentence that should be applied

to Dyer's conviction for possession of child pornography hinges

upon an interpretation of the term "intent to traffic" within the

purview of § 2G2.4(c)(2). The majority interprets the term "intent

to traffic" to require general intent in the sense of knowledge,

and not specific or purposeful intent.              I respectfully disagree

with this interpretation.

             During the sentencing proceedings Dyer argued that he had

no intention to distribute the images he possessed and that he did

not have "an actual intention for anybody else to receive those

images."     The government, on the other hand, contended that Dyer

possessed the images with intent to traffic.               On the basis of


                                    -29-
Dyer's arguments and taking into consideration the government's

position, the district court concluded that Dyer's actions met the

requirements of § 2G2.4(c)(2).1   On appeal, Dyer argues that the

government failed to show that he acted with specific intent to

traffic in child pornography and the government has not contested

Dyer's assertion that § 2G2.4(c)(2) requires specific intent.

          As a threshold matter, the majority claims that Dyer has

waived the argument that § 2G2.4(c)(2) requires the government to

prove that he acted with specific intent to traffic in child

pornography.   The majority's attempt to justify the application of

plain error review in this case fails not the least because the

record shows that Dyer has argued that he lacked actual or specific

intent, but because it is clear that the government never argued

that § 2G2.4(c)(2) requires general intent to traffic.   Thus, the

government never put the district court in position to decide

whether general intent suffices to apply § 2G2.4(c)(2).         The

majority therefore errs when it faults Dyer for not developing his


     1
          The majority underscores the fact that the sentencing
court never interpreted the term intent within the purview of
§ 2G2.4 (c)(2).    The majority also concludes that the district
court did not plainly err when it concluded that Dyer's actions met
the Guideline's intent requirements.       In so concluding, the
majority assumes that the district court inferred a general intent
requirement from § 2G2.4(c)(2).        However, in my view, the
government's failure to argue that general intent suffices in this
case, reveals that the district court interpreted § 2G2.4(c)(2) in
light of Dyer's argument that he lacked actual or specific intent
to traffic.   The district court therefore did not hold, as the
majority does today, that general intent suffices to sentence Dyer
under § 2G2.4(c)(2).

                               -30-
specific intent argument, even though Dyer has argued that he

lacked specific intent and the government never claimed that

general intent suffices to apply § 2G2.4(c)(2). I therefore cannot

partake       in    the       majority's          assertion    that       this   court's

interpretation           of   the   mens    rea    required   by    §    2G2.4(c)(2)   is

controlled by plain error analysis.

               The distinction between general and specific intent is

sometimes difficult and at times elusive.                     See       United States v.

Bailey, 444 U.S. 394, 403 (1980)(acknowledging the difficulty

courts face in defining the mens rea required for a particular

crime and discussing the different interpretations of general and

specific intent).             But it is critically important in a case like

this       where   the    sentence     to    be    imposed    on    one    convicted   of

possessing child pornography depends on the state of mind with

which he possessed said material.2


       2
          The majority argues that the distinction between specific
and general intent is not critical in this case because we are not
concerned with defining the elements of a crime to separate
wrongful and innocent conduct. The majority further suggests that
the leeway sentencing judges enjoy in considering past uncharged
conduct bolsters the conclusion that general intent satisfies the
mens rea required by § 2G2.4(c)(2). I fail to ascertain why we
should disregard the distinction between specific and general
intent when we interpret the mens rea established by the Sentencing
Guidelines. This distinction is crucial in this case because the
less culpable conduct of possession bleeds into the more serious
conduct of trafficking on the basis of criminal intent. Bearing in
mind that our interpretative task in this case requires us to tread
the waters of the "relation between some mental element and
punishment for a harmful act," Morissette v. United States, 342
U.S. 246, 250-51 (1952), it is crucial to carefully scrutinize the
level of culpability the Sentencing Guidelines prescribe.

                                            -31-
            A specific intent crime is one "committed voluntarily and

purposely    with   the   specific    intent     to   do    something   the    law

forbids."     United States v. Blair, 54 F.3d 639, 642 (10th Cir.

1995)(internal quotation marks omitted).              It requires more than a

knowing violation of the law.          United States v. Kimes, 246 F.3d

800, 806 (6th Cir. 2001).            The defendant must act with a bad

purpose or with the objective of committing the act prohibited by

the law.    See Blair, 54 F.3d at 642; United States v. Kleinbart, 27

F.3d 586, 592 n.4 (D.C. Cir. 1994).          In contrast, a general intent

crime   requires    the   knowing     commission       of   an   unlawful     act.

Kleinbart, 27 F.3d at 807. The defendant must act "voluntarily and

intentionally,      and   not   because     of   mistake,     inadvertence     or

accident."    Blair, 54 F.3d at 642.

            The majority provides several arguments to support its

conclusion that the term "intent to traffic" under § 2G2.4(c)(2)

requires general intent. The majority claims that the Sentencing

Commission chose not to use language that would require specific

intent and that both the legislative history of the panoply of

statutes that criminalize distribution and trafficking of child

pornography, and the "general considerations" of criminal intent

support the conclusion that § 2G2.4(c)(2) requires general as

opposed to specific intent. Regrettably, the majority misapprehends

the text of the Guidelines, ignores their clear mandate, and

misapplies the "general considerations" of criminal law and intent.



                                     -32-
               First, the plain language of § 2G2.4(c)(2) reveals that

the Commission required specific intent in order to find that one

convicted for possession of child pornography should be sentenced

under U.S.S.G. § 2G2.2, which is the trafficking Guideline.                 By

employing the term "intent to traffic," the Sentencing Commission

chose language that has been interpreted by several of our sister

courts    to    require   specific    intent.   Kimes,    246   F.3d   at   808

(explaining that when Congress intends to create a specific intent

crime it does so explicitly by employing, for example, the term

"with intent to"); see also United States v. Welch, 327 F.3d 1081,

1095 (10th Cir. 2003)(interpreting the Travel Act, 18 U.S.C.

§ 1952, and holding that by requiring an act with "intent to . . .

promote . . . or facilitate the promotion . . . of an unlawful

activity," the statute required specific intent or proof that the

defendant acted with the objective of promoting some unlawful

activity).      For example, the federal statute that criminalizes the

knowing    use    of   unauthorized    access   devices   "with   intent     to

defraud," 18 U.S.C. § 1029(a)(2), has been interpreted to require

specific intent to defraud.           United States v. Ismoila, 100 F.3d

380, 387 (5th Cir. 1996).3            Similarly, in the drug-trafficking

     3
          The majority errs when it relies on the Eighth Circuit's
decision in United States v. Gantos, 817 F.2d 41, 42-43 (8th Cir.
1987) to argue that specific intent is not ordinarily a
prerequisite in criminal offenses. The Court in Gantos reviewed a
specific intent instruction that defined specific intent as
requiring evidence that the defendant knew that his act violated
the law and that he purposely intended to violate the law. Relying
on the general principle that ordinarily knowledge that an act

                                      -33-
context, we have consistently held that to prove possession with

intent    to    distribute     in   violation     of     21   U.S.C.   §   841,   the

government      must    establish    that      the   defendant     knowingly      and

intentionally possessed a controlled substance with specific intent

to distribute. United States v. García-Carrasquillo, 483 F.3d 124,

130 (1st Cir. 2007); United States v. López-López, 282 F.3d 1, 19

(1st Cir. 2002).

               Additionally, the structure of § 2G2.4(c)(2) and its

interaction with § 2G2.2 bolster the conclusion that the Sentencing

Commission included a specific intent requirement.                 The Commission

added § 2G2.4 to address offenses involving possession of child

pornography, as distinguished from trafficking offenses which are

covered under § 2G2.2.         The Commission also directed that when the

offense    involves      trafficking      in    child    pornography,      including

possession of said material with intent to traffic, an enhanced

sentence should be imposed under the trafficking provisions of

§ 2G2.2.       U.S.S.G. § 2G2.4(c)2).          Put another way, § 2G2.4(c)(2)

allows a sentencing court to apply § 2G2.2 to a defendant who has

been   convicted       for   possession    of    child    pornography      when   the


violates the law is not an essential element of the offense,
Gantos, 817 F.2d at 43, and mindful of the fact that the criminal
law does not require knowledge that an act is illegal, wrong, or
blameworthy, United States v. Baker, 807 F.2d 427, 429 (5th Cir.
1986)(citation omitted), the Gantos court rejected the proposed
specific intent instruction. The court thus rejected the proposed
instruction on the basis that the statute in controversy did not
require knowledge or purpose to violate the law. But contrary to
the majority's assertion, the Gantos court did not hold that
specific intent is not ordinarily required in criminal offenses.

                                       -34-
government establishes by preponderance of the evidence that the

defendant intended to traffic in said material.                          A requirement of

specific     intent       is    thus       consistent          with     the     Commission's

endeavoring    to     separate         punishment      for       possession        of    child

pornography from those offenses that involve trafficking in said

material.     It also guarantees that only those who are more than

mere possessors of child pornography are sentenced under § 2G2.2

and its trafficking provisions.

            Secondly, I disagree with the majority's assertion that

a   requirement      of    general         intent     better          comports    with     the

legislative history of the statutes that criminalize trafficking in

child   pornography.           In    the    majority's          view,     the    fact     that

trafficking in child pornography no longer requires proof that the

defendant acted with a commercial purpose reveals that motives are

irrelevant     and     that         consequently      §        2G2.4(c)(2)       should     be

interpreted to require general intent to traffic. In pursuing this

argument,    the     majority        conflates      the    actions       that     amount    to

trafficking in child pornography with the mens rea required by the

Guidelines.    The fact that financial gain or commercial purpose is

not necessary to convict an individual for trafficking in child

pornography informs our interpretation of the term "traffic" by

clarifying    the     actions        that    amount       to    trafficking        in    child

pornography.       However, this legislative history does not end our

inquiry regarding the mens rea an individual must exhibit to be



                                            -35-
deemed to possess child pornography with intent to traffic. We are

here   concerned        with   whether     the     defendant     possessed      child

pornography with intent to traffic, not with whether he was moved

by an expectation to recoup a profit.              The fact that Congress made

trafficking in child pornography a crime regardless of whether the

defendant was moved by a commercial purpose is not inconsistent

with the interpretation that § 2G2.4(c)(2) requires the government

to show that the defendant specifically intended to traffic in

child pornography.

              Thirdly, in my view, the majority misapplies the general

considerations of criminal law when it relies on this court's

decision in United States v. Tobin, 552 F.3d 29, 46 (1st Cir. 2009)

to hold that § 2G2.4(c)(2) requires general intent.                     Tobin, the

majority      argues,    allows    this    court    to    rest    on   the    default

assumption or "general consideration" that intent in most crimes

means general intent.          I disagree.      In pursuing this argument, the

majority fails to ascertain that although general intent has been

held sufficient to meet the mens rea requirement for most crimes,

this general principle is ordinarily applied where the criminal

statute is silent as to the mens rea required.                   See, e.g., Carter

v.   United    States,     530    U.S.    255    (2000)   (concluding        that   the

presumption in favor of scienter only required proof of general

intent in federal bank robbery statute that was silent as to the

mens rea requirement); Bailey, 444 U.S. at 406-08 (inferring a



                                         -36-
general   intent    requirement     from      federal    statute      criminalizing

escape    from   federal     custody    in    the   absence      of    language    or

legislative      history     regarding       the    mens   rea        required    for

conviction).       But where, as here, the plain language of the

statutory text includes a mens rea requirement, we need not resort

to the general considerations invoked by the majority.

              Although general intent may generally be sufficient in

most crimes to support a conviction, Bailey, 444 U.S. at 408, we

are dealing in this case with a narrow category of crimes that

require a heightened level of mental culpability.                  Therefore, the

principle that ordinarily general intent suffices for most crimes

does not control our inquiry in this case.

              Finally, the majority errs in its reliance on dicta from

Tobin    to   conclude     that   trafficking       in   child   pornography       is

inherently bad conduct and therefore knowledge of the consequences

of such action satisfies the Guidelines' mens rea requirement.                    In

Tobin, this court held that a statute which criminalized the making

of repeated phone calls with intent to harass required specific

intent to harass and further intimated that general intent could be

required by a different section of said statute that criminalized

obscene calls or calls that involved child pornography.                    552 F.3d

at 33.    The Tobin court was only concerned with interpreting the

statute's section that criminalized the making of repeated phone

calls with intent to harass. Therefore, any expressions related to



                                       -37-
the making of obscene calls or calls involving child pornography

constitute dicta that does not bind the court in the present case.

In addition, the court in Tobin reached its determination by

interpreting the statute as a whole and differentiating between the

harms posed by the types of conduct prohibited under it.                            The

court, however, did not rule that when a statute criminalizes

actions related to child pornography it should be interpreted to

require knowledge as opposed to purpose.                 Tobin is therefore scant

authority for the majority's interpretation that §2G2.4(c)(2) only

requires general intent.

            In   interpreting      §   2G2.4(c)(2)         I   am    guided    by   the

principle that the statute's plain language is the starting point

of our interpretation. Staples v. United States, 511 U.S. 600, 605

(1994)(stating that the language of a criminal statute is the

starting    point   of     the   court's    interpretation           of   a   criminal

statute); Carter, 530 U.S. at 271 (stating that the canons of

statutory   interpretation       require        courts    to   first      examine   the

statutory text).     As has been seen, by employing the words "with

intent to traffic," the Commission chose language that has been

interpreted to require specific intent and the structure and

purposes of the Guidelines support this conclusion.                           I would

therefore   hold    that    in   order     to    sentence      one   convicted      for

possession of child pornography pursuant to § 2G2.4(c)(2), the

government must prove beyond a reasonable doubt that the defendant



                                       -38-
possessed child pornography with specific intent to traffic in said

material.

     II. The facts are insufficient to conclude Dyer exhibited
                     specific intent to traffic

            Although   the   term    "traffic"     is   not   defined   in     the

Guidelines, it encompasses both buying and selling commodities for

money or exchanging commodities by barter.              See United States v.

Paul, 274 F.3d 155, 163 (5th Cir. 2001).          Evidence that a defendant

traded pictures online or sent and received images via the Internet

has been found sufficient to constitute trafficking under § 2G2.4

(c)(2).     United States v. Bender, 290 F.3d 1279, 1285 (11th Cir.

2002)(convicted defendant admitted that he had traded pictures

online, and the evidence showed that he had sent child pornographic

images to other users online); United States v. Johnson, 221 F.3d

83, 98 (2d Cir. 2000)(finding that trafficking occurred where

defendant admitted he sent and received child pornography over the

Internet). Trafficking has also been found where the defendant not

only downloaded child pornography onto his computer, but also

uploaded child pornographic images in order to join a pornographic

website, United States v. Groenendal, 557 F.3d 419, 421; 424 (6th

Cir. 2009), and where defendant admitted he traded pornography over

the Internet and the evidence showed he sent explicit photographs

to   another   individual    and    agreed   to   exchange    videos    with   an

undercover agent,      United States v. Jordan, 111 Fed. Appx. 65, 68

(2d Cir. 2004).

                                     -39-
           These cases show that in order to find that a defendant

trafficked in child pornography, the government must prove that the

defendant engaged in affirmative actions to exchange or barter in

child pornography.       These actions include, for example, receiving

and sending child pornography.        See United States v. Parmelee, 319

F.3d 583, 594 (applying § 2G2.4(c)(2) to a defendant convicted for

possession of child pornography where the evidence established that

defendant stored pornographic images on recordable compact discs

which he intended to barter with other people for programs or

services).

           The facts of this case show that Dyer used the file-

sharing application LimeWire to download child pornography; he knew

that   when   files   were      downloaded    from   LimeWire   the    program

automatically    saved    the    files   in   a   shared   folder     that   was

potentially available to other users; and he failed to remove the

files to make them unavailable for sharing.           It is thus clear that

Dyer knowingly downloaded child pornography through LimeWire and

that he understood that LimeWire automatically saves images in a

shared folder.    But these actions do not show he purposely sought

to trade, exchange, or barter in child pornography or that he

specifically intended to engage in the sort of activities that have

been held to amount to trafficking in child pornography.

           The critical factor to discern whether Dyer intended to

traffic child pornography via LimeWire is not whether he had



                                     -40-
knowledge of how LimeWire works in terms of file-sharing, but

rather whether by using LimeWire to download child pornography Dyer

intended to traffic in said items.     We lack proof that Dyer used

LimeWire with the objective of offering the images for barter or

exchange with others.   We similarly lack evidence that Dyer sought

to engage in an active exchange of images of child pornography with

the purpose to receive further images in return.     Moreover, the

evidence actually established that Dyer had not traded any images

over the Internet via e-mail, chat-rooms, bulletin boards, or

newsgroups.

          Absent proof that Dyer allowed LimeWire to keep images in

a shared folder with the purpose of engaging in an exchange of

images, I cannot partake in the majority's conclusion that the

sentencing court properly applied § 2G2.4(c)(2).    Specific intent

in this case is inextricably bound to affirmative actions to

traffic in child pornography.    In my view, use of LimeWire with

knowledge of its automatic file-sharing features and Dyer's failure

to disable the sharing feature is insufficient to conclude that

Dyer exhibited specific intent to traffic absent evidence that he

took additional actions to offer the images for exchange with the

expectation that he would receive further commodities in return.

          I also note my concern with the majority's efforts to

equate intent to share with intent to traffic.        Although the

majority claims it is not holding that mere use of LimeWire amounts



                                -41-
to trafficking in child pornography, its interpretation that the

"crucial acts separating possession from trafficking involve intent

to share images of child pornography with others," threatens to do

just that.        While use of a file-sharing program may provide

circumstantial evidence of intent to traffic, a finding that there

is specific intent to traffic requires more than knowing use of a

file-sharing      program.     It   requires      proof   that   the   defendant

intended to engage in an exchange of commodities or goods with the

expectation to receive some type of commodity in return.                        The

inference that sharing is tantamount to trafficking lowers the

threshold    of   the   actions     that   have    been   held   to    amount    to

trafficking and leads to the imposition of criminal liability for

trafficking where the user has not exchanged commodities by barter.

            For   these    reasons,   I    respectfully     dissent     from    the

determination that Dyer was correctly sentenced under § 2G2.4

(c)(2).

                          III. Confrontation Clause

            Finally, I join the majority in rejecting Dyer's claim

that the sentencing court relied on Agent Lechner's grand jury

testimony, thereby depriving Dyer of his right to cross-examine

Agent Lechner regarding his grand jury testimony.                     We have to

evaluate this claim under the plain error standard of review

because Dyer failed to raise the Confrontation Clause issue before

the district court. United States v. González-Castillo, 562 F.3d


                                      -42-
80, 82 (1st Cir. 2009).           As the majority states, there is no

evidence   in   the   record     that    the   sentencing   court   relied   on

Lechner's grand jury testimony without allowing Dyer to elucidate

this testimony at sentencing.           Absent an obvious or clear error by

the sentencing court, Dyer's claim that the sentencing court

deprived him of his right to confront Agent Lechner regarding his

grand jury testimony must therefore fail.

                               IV. Conclusions

           I    dissent   from    the    majority's   conclusion    that     the

district court properly sentenced Dyer pursuant to § 2G2.4(c)(2).

I would hold that § 2G2.4(c)(2) requires specific intent to traffic

and that the facts of this case fail to show that Dyer exhibited

specific intent to traffic in child pornography.             I concur in the

determination that the district court did not violate Dyer's Sixth

Amendment right to confront the witnesses presented against him.




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