                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2004

USA v. Harrison
Precedential or Non-Precedential: Precedential

Docket No. 02-4030




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"USA v. Harrison" (2004). 2004 Decisions. Paper 963.
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PRECEDENTIAL                            Office of Federal Public Defender
                                        1001 Liberty Avenue
 THE UNITED STATES COURT OF             1450 Liberty Center
APPEALS FOR THE THIRD CIRCUIT           Pittsburgh, PA 15222
         ___________                           Counsel for Appellant

             No. 02-4030
             ___________                Paul M. Thompson, Esq. (Argued)
                                        Bonnie R. Schlueter, Esq.
   UNITED STATES OF AMERICA             Office of United States Attorney
                                        700 Grant Street
                   v.                   Suite 400
                                        Pittsburgh, PA 15219
   MICHAEL HENRY HARRISON,                     Counsel for Appellee
  a/k/a Emmanuel Henry Harrison, III
                                                      ___________
         Michael Henry Harrison,
                                              OPINION OF THE COURT
                   Appellant                       ___________
             ___________
                                        NYGAARD, Circuit Judge.
   APPEAL FROM THE UNITED
    STATES DISTRICT COURT                       Michael Henry Harrison challenges
 FOR THE WESTERN DISTRICT OF            the sixty-three month sentence imposed by
       PENNSYLVANIA                     the District Court for trafficking in child
                                        pornography. The single issue on appeal is
     (D.C. No. 01-cr-00025-1E)          whether the sentencing enhancement under
          District Judge:               United States Sentencing Guideline
 The Honorable Maurice B. Cohill, Jr.   (“U.S.S.G.”) § 2G2.2(b)(5), for when “a
           ___________                  computer was used for the transmission of
                                        the material or a notice or advertisement of
   ARGUED SEPTEM BER 3, 2003            the material,” was properly applied. For
                                        the reasons that follow, we will affirm the
BEFORE: SLOVITER, NYGAARD, and          application of the enhancement.
      ROTH, Circuit Judges.
                                                             I.
        (Filed February 6, 2004)
                                               Harrison was indicted as a result of
             ___________                a sting operation aimed at traders and
                                        collectors of child pornography. He
Renee Pietropaolo, Esq. (Argued)        responded to the following advertisement
Karen S. Gerlach, Esq.                  from an undercover government agent,
posted on a web site geared toward those          old. He offered to send a list of these
interested in child pornography:                  videotapes, and asked Harrison if he had
                                                  “anything in the way of pics/vids.”
       Hi, I am a discreet collector of           Harrison responded:
       ACTION VHS Vids on the topic of
       pre-teens and very young teens and                Hi, I am interested in seeing your
       I am looking for others who share                 list and I have a lot of pics on all
       my TABOO interests especially if                  ages from 5 to 17 mostly hardcore.
       you are from Pennsylvania.                        I am from Pa. also.

       Please e-mail me at the below                     Harrison and the undercover agent
       address but you must state that you        exchanged numerous other emails, in
       are NOT a cop, fbi, or postal or I         which the undercover agent described the
       will NOT reply.                            explicit contents of the videotapes, and
                                                  Harrison commented, among other things,
       Also, please state that you saw this       “Hope you’re not a cop LoL!” and
       post in YAHOO WILD AND                     suggested that “Perhaps we could meet
       ACTIVE PRE-TEENS so I know                 someday with some little playmates.”
       your reply is legit.                       Eventually, the two men arranged a trade:
                                                  Harrison agreed to mail computer disks
       Please no flamers, trolls or fantasy       with at least 150 pornographic pictures to
       trippers.                                  the undercover agent, and in return, the
                                                  agent agreed to mail Harrison three
At the bottom of this advertisement was           videotapes entitled “Bath Time,”
the email address used by the undercover          “Doctor’s Appointment,” and “Incest
agent. Harrison responded with the                Family.” The undercover agent received
following message:                                four computer disks from Harrison in the
                                                  mail, each containing explicit pictures of
       Hi, I am a 45 year old male living         underage boys and girls engaging in sexual
       in NW PA. I saw your post in               conduct. The three videotapes were
       Active pre teens and want to write.        subsequently conveyed to Harrison in a
       I am not a cop, fbi or postal angent       controlled delivery.
       (sic.) and don’t much care for them.
       I am very interested and turned on             Government agents executed a search
       by young teen and pre teens. Mike.         warrant on Harrison’s house moments
                                                  after this delivery, seizing the videotapes
       The undercover agent responded             and Harrison’s computer, which contained
the next day with a message indicating that       numerous pornographic pictures and video
he possessed sexually explicit videotapes         images of children. While the search was
featuring children as young as eight years        being executed, Harrison agreed to speak

                                              2
to the agents. He told them he had been           verbally accepted the portion of the plea
collecting child pornography for about            agreement under which he acknowledged
seven months by downloading it onto his           responsibility for the conduct charged in
computer from various Internet sites, but         counts two and three.
that this was the first time he had traded
pornography. He admitted he had                         The maximum sentence under 18
downloaded the explicit pictures that he          U.S.C. § 2252(a)(2) is fifteen years, and
later copied onto disks and mailed to the         the base offense level is seventeen. The
undercover agent. He said he collected            District Court used an offense level of
child pornography because he was “just            twenty-five, which included eleven levels
curious,” and denied ever having sexual           of enhancement and a three-level reduction
involvement with a child.                         for acceptance of responsibility. Together
                                                  with a criminal history category of II, this
       A grand jury indicted Harrison on          yielded a a guideline range of sixty-three
three counts. Count one charged him with          to seventy-eight months imprisonment.
transporting child pornography in violation       The Court sentenced Harrison at the
of 18 U.S.C. § 2252(a)(1), while counts           bottom of this range: sixty-three months in
two and three, respectively, charged him          prison, to be followed by three years of
with receiving child pornography in               supervision.
violation of 18 U.S.C. § 2252(a)(2) and
possessing child pornography in violation              The only issue is the District Court’s
of 18 U.S.C. § 2252(a)(4)(B). Harrison            application of § 2G2.2(b)(5), which
agreed to plead guilty to count one under a       provides for a two-level enhancement if “a
plea agreement which dismissed counts             computer was used for the transmission of
two and three. The plea agreement further         the material or a notice or advertisement of
stipulated that Harrison “acknowledges his        the material.” Before the District Court’s
responsibility for the conduct charged in         decision to apply the enhancement, both
Counts Two and Three of the Indictment”           parties presented briefs and oral argument
and “that the conduct charged in those            on the issue.
counts may be considered by the Probation
Office or by the District Court in imposing                            II.
sentence.”
                                                       Under 18 U.S.C. §§ 3742(a)(1) and
         In the plea colloquy, the District       (a)(2), this Court has jurisdiction to review
Court asked Harrison if he was admitting          sentences imposed in violation of the law
to the transportation of child pornography        or as the result of an incorrect application
that had been “obtained through the use of        of the sentencing guidelines. This Court
a computer and shipped by way of the              reviews a district court’s interpretation of
United States mail.” Harrison indicated           the sentencing guidelines de novo, and a
that he admitted this charge, and also            district court’s findings of fact supporting

                                              3
application of the guidelines for clear                       The Seventh Circuit Court of Appeals
error. See United States v. Butch, 256 F.3d               took a simila r approach to the
171, 177 (3d Cir. 2001). This Court also                  interpretation of § 2G2.2(b)(5) in United
reviews for plain error a district court’s                States v. Richardson, 238 F.3d 837 (7th
determination of what constitutes relevant                Cir. 2001). In Richardson, the defendant
conduct for the purposes of sentencing.                   pleaded guilty to receiving and possessing
See United States v. Perez, 280 F.3d 318,                 child pornography in violation of 18
352-54 (3d Cir. 2002).                                    U.S.C. §§ 2252 (a)(2) and (a)(4), admitting
                                                          that he had downloaded more than 70,000
          It is important to note at the outset           pornographic images from the Internet. In
of this analysis that the language of §                   holding that the enhancement under §
2G2.2(b)(5) is phrased in the passive                     2G2.2(b)(5) should apply, the court
voice. It does not say, as does a similar                 examined the structure of the sentencing
e n h a n c e m e n t u n de r U .S .S .G . §             guidelines in regard to the child
2G2.4(b)(3), that the sentence shall be                   pornography statutes, and observed that
enhanced because of “the defendant’s use                  they seemed intended to impose the same
of a computer.” (emphasis added). Instead,                punishment for receiving and sending
§ 2G2.2(b)(5) applies if “a computer was                  pornography:
used for the transmission of the material”
(emphasis added). The enhancement                                Use of the Internet enhances the
therefore applies whether the defendant                          dangers that child pornography
uses a computer to transmit “the material”                       poses, because it is a more discreet
to someone else, or someone else uses a                          and effic ient method of
computer to transmit “the material” to the                       distribution; but if this makes the
defendant. In other words, in the language                       sender more dangerous, it likewise
of § 2G2.2(b)(5), “transmission” covers                          makes the receiver more dangerous.
both the sending and the receiving of                            A market has two sides, supply and
pornographic material, so if the defendant                       demand; without both, the market
received child pornography by means of a                         collapses. The senders of child
computer, the enhancement is applicable.                         pornography supp ly it; the
This interpretation is consistent with the                       demanders receive it. The guideline
intent evident throughout the sentencing                         is acknowledged to treat both sides
guidelines for offenses involving child                          of the market symmetrically when
pornography, which apply the same                                any method of transmission other
penalties for receiving pornography as for                       than the Internet is used; it would
sending it – for example, all of the                             make no sense to treat them
enhancements under § 2G2.2 apply equally                         differently when the more ominous
to defendants guilty of “receiving,                              method is used.
t r a n sp o r t in g o r s h i p p in g ” c h i ld
pornography.                                              Richardson, 238 F.3d at 842.

                                                      4
       Based on this reasoning, the                        solicitation. . . . Under the
Richardson court concluded that                            guideline, those who seek out and
“‘computer . . . used for the transmission’                respond to notice and
in section 2G2.2(b)(5) of the sentencing                   advertisement of such materials are
guidelines does not mean, as the defendant                 as culpable as those who initially
argues, ‘computer . . . used by the                        send out the notic e and
defendant for the transmission’.” Id. at                   advertisement.
841. On the contrary, the court found it           Id. at 259-60.
clear that the language of the guideline
was intended to cover receiving as well as                The Eighth Circuit Court of
sending, and affirmed the application of           Appeals made a similar finding in United
the enhancement to Richardson, who                 States v. Stulock, 308 F.3d 922 (8th Cir.
pleaded guilty to receiving pornographic           2002), in which the court affirmed the
images.                                            application of the § 2 G2.2(b )(5)
                                                   enhancement to a defendant who had seen
       Each of the other circuits that has         an advertisement for a pornographic
addressed this issue has followed the lead         videotape on the Internet, and then ordered
of the Seventh Circuit, in finding that §          and received the tape by mail. The Stulock
2G2.2(b)(5) applies to receiving as well as        court reviewed with approval the
sending. In United States v. Dotson, 324           reasoning employed in Richardson,
F.3d 256 (4th Cir. 2003), the Fourth               finding that the intent of the guidelines
Circuit Court of Appeals held that the             was fulfilled by punishing receivers with
computer enhancement was applicable to             the same severity as senders. Id. at 925.
a defendant who responded to an                    The Sixth Circuit Court of Appeals
advertisement for child pornography                likewise condoned the conclusions of the
posted on the Internet. The court found the        Richardson court in United States v. Boyd,
guideline’s use of the passive voice               312 F.3d 213 (6th Cir. 2002), in which it
significant:                                       approved the imposition of the
                                                   enhancement on a defendant convicted of
       Had the Sentencing Commission               receiving child pornography through his
       intended to limit the scope of the          computer.
       enhancement to defendants who
       forwarded           notices       or               The facts in this case are not in
       advertisements, it could have easily        dispute. Harrison pleaded guilty to
       done so by referring to the                 transporting through the mail visual
       defendant in the text of the                depictions of minors engaging in sexually
       guideline. . . . In wording the             explicit conduct, “such visual depictions
       guideline as it did, the Commission         having been obtained through the use of a
       addressed not only the solicitor, but       computer.” Harrison told a federal agent
       also the recipient of such                  that he had downloaded some of the

                                               5
specific pictures which he later sent to the       computer.2 Therefore, Harrison argues, the
undercover federal investigator. During the        source of the pornographic pictures can
sentencing hearing, Harrison’s attorney            only be considered if it qualifies as
admitted that Harrison downloaded                  “relevant conduct” under U.S.S.G. §
pornographic images onto his computer,             1B1.3.
copied them onto disks, and later mailed
them to the federal agent. 1 Based on these                This interpretation of the guidelines
facts, we find it clear that “a computer was       is absurd. There is nothing illegal about
used for the transmission of the material”         sending computer disks through the mail –
and that the District Court properly applied       Harrison’s crime was the transmission of
§ 2G2.2(b)(5).                                     the pornographic images contained on
                                                   those disks, not the disks themselves. The
   Harrison attempts to sidestep the direct        heading of § 2G2.2(b)(5) reinforces this
application of the guidelines by defining          obvious reading, since it applies to
“the material” as the computer disks sent          trafficking “in material involving the
to the undercover agent, rather than the           sexual exploitation of a minor.” The words
pornographic material contained on those           “the material” found later in the guideline
computer disks. By this reasoning, a               refer back to this heading, and thus “the
computer had not been used to transmit             material” means “the material involving
“the material,” because “the material”             sexual exploitation of a minor.”
encompasses only the computer disks
themselves, which were unquestionably                    In Harrison’s case, “the material”
sent through the mail and not via a                means the pornographic images contained
                                                   on the computer disks, and he does not
                                                   dispute that these images were transmitted
                                                   to him using a computer. In fact, the count
1.       Harrison’s attorney does not
dispute that the images Harrison sent
through the mail had, at some point, been          2.      Harrison’s attorney conceded
downloaded using his computer. During              during oral argument before this Court
argument before the District Court,                that § 2G2.2(b)(5) would apply if he had
Harrison’s attorney conceded that:                 been convicted of possession of child
“[E]veryone agrees that he obtained                pornography, but argued that it did not
some of these images from downloading              apply because that charge had been
them from the Internet, that he put those          dropped. Since possession of
on disks, mailed them to the undercover            pornography is an integral part of the
agent, and in return had the three video           ability to traffic in pornography, and thus
tapes mailed to him.” Harrison’s attorney          incorporated as part of Harrison’s
made a similar concession in oral                  offense of conviction, we do not find this
argument before this Court.                        distinction compelling.

                                               6
to which Harrison pleaded g uilty                  accepted responsibility for this conduct,
specifically alleged that the images he sent       and we have recognized that a sentencing
to the undercover agent had been                   enhancement, and even a departure from
downloaded from the Internet. Further, the         the guidelines, can be applied based on
language of § 2G2.2(b)(5) is specifically          conduct alleged in counts that were
targeted toward “the material” and not “the        dismissed as result of a plea agreement.
offense,” as are other portions of § 2G2.2.        See United States v. Baird, 109 F.3d 856,
The application of the enhancement,                864 (3d Cir. 1997). Although this conduct
therefore, does not hinge on whether the           must be in some way “related” to the
defendant used a computer to commit “the           offense conduct, it need not fit into the
offense” for which he was convicted.               guidelines’ definition of relevant conduct
Instead, the enhancement hinges on “the            found in § 1B1.3. Id. at 865.
material” implicated in the offense, and
whether this material had at some point                     In order to be “related” to the
been transmitted using a computer. There           offense, “the acts in question must exhibit
is no dispute that “the material” in this          commonalities of factors sufficient to
case had been so transmitted, and as a             allow for a reasonable grouping of the
result, § 2G2.2(b)(5) is applicable.               separate, individual acts into a larger,
                                                   descriptive whole. . . . [T]he similarities of
          The District Court encourages            the acts must arise from the character or
Harrison’s foray into the realm of relevant        type of the acts.” Id. Certainly, the conduct
conduct by appearing to base its decision          involved in receiving child pornography,
to grant the § 2G2.2(b)(5) enhancement on          as charged in count two, is closely related
the conduct detailed in counts two and             in character to the charge to which
three, which were dropped by the                   Harrison pleaded guilty – especially since
prosecution, but for which Harrison                receiving pornographic images over the
accepted responsibility in the plea                computer was an essential precursor to
agreement. The Court need not have taken           later trading those images for pornographic
this extra step, since the conduct necessary       videotapes.      The District Court was
for the enhancement had been specified in          therefore correct in its finding that this
the text of the count to which Harrison            related conduct justified the application of
pleaded guilty, and thus made an integral          the § 2G2.2(b)(5) enhancement, and no
part of the offense of conviction. The extra       discussion of relevant conduct under §
step taken by the District Court, however,         1B1.3 is necessary.
takes us to the same place.
                                                    Harrison contends that downloading the
      First of all, it was entirely                pornography is not related conduct,
appropriate for the District Court to              because he downloaded the pictures well
consider the conduct alleged in the                before he made an agreement to trade
dismissed counts. Harrison explicitly

                                               7
them.3 In any case, the temporal                    in the application of § 2G2.2(b)(5). The
relationship between the two actions is not         guideline applies no matter who used the
decisive. If Harrison had not downloaded            computer for transmission – the defendant
the images, he could not have trafficked in         or another party – but it does not apply if a
them, and the two actions are therefore             computer was used in a way which is not
closely tied.                                       “transmission,” for example to help create,
                                                    alter, or copy pornography.
        Harrison further contends that to
apply the guideline in his case would be to                   Harrison also contends that the
cause it to lose all its meaning, and turn it       application of the “transmission”
into an enhancement that applies whenever           enhancement to his case would obliterate
the defendant used a computer in some               the distinction between “transmission” and
way related to the pornography, a role              “distribution,” the word used in §
already filled by U.S.S.G. § 2G2.4(b)(3).           2G2.2(2)(A-E). The enhancements for
This argument ignores the fact that under           distribution are not limited by any
our interpretation, the requirement that a          particular method of distribution, however,
computer be used for “transmission” of the          while “transmission” is specifically
pornography still plays an important role           qualified by the requirement that it be by a
                                                    computer. The sections therefore serve
                                                    distinct purposes: § 2G2.2(b)(5) punishes
                                                    a specific method of transmission – by
3.        Since Harrison told police he
                                                    computer – while § 2G2.2 (2)(A-E)
had only been downloading child
                                                    addresses other forms of distribution.
pornography for about seven months
                                                    Under these guidelines, handing out
before his arrest, the time lapse between
                                                    p o r n o g raphic l ea fl et s w o u l d b e
his downloading of the material and his
                                                    “distribu tion ,” but cle arly not a
use of it to barter can not have been that
                                                    “transmission” by computer.
great – especially because it was nearly
three months from the time Harrison first
                                                                        III.
made contact with the undercover agent
to the time of his interview with police.
                                                       The enhancement under § 2G2.2(b)(5)
          Harrison’s attorney asserted at
                                                    is also applicable to Harrison’s conduct
oral argument that the holding we make
                                                    because he used his computer to transmit
today would mean that the § 2G2.2(b)(5)
                                                    a “notice” of child pornography. The
enhancement would apply to a defendant
                                                    transportation of child pornography to
convicted of trafficking in pornography
                                                    which Harrison pleaded guilty would not
that he had downloaded from the
                                                    have been possible without the extensive
computer many years beforehand.
                                                    email correspondence that took place
Although we do not specifically decide
                                                    between Harrison and the undercover
this issue, neither are we particularly
                                                    federal agent. The communications began
troubled by the prospect.

                                                8
when Harrison resp ond ed to an                     designating it as a “public” notice. Other
advertisement on the Internet announcing            definitions of notice indicate that it may
the availability of videotapes containing           m e a n m e r e l y “ i n f o rm a t i o n ” o r
child pornography. Harrison’s response to           “[I]ntelligence by whatever means
the government agent’s advertisement was            com mu nica ted.” B LACK’S L AW
to indicate his interest in the videotapes,         D ICTIONARY 1061 (6th ed. 1990). As a
and to tell him in the process of bartering         result, all that these definitions make clear
that he had “a lot of pics on all ages from         is that the issue can not be decided through
5 to 17 mostly hardcore.” The government            a battle of the dictionaries, and we must
argues this response is sufficient to               look to the purpose and structure of the
constitute “notice . . . of the material”           sentencing guidelines for aid.
under § 2G2.2(b)(5). We agree.
                                                              The purpose behind the child
          It is not disputed that Harrison          pornography sente ncing guidelines
transmitted a description of his                    supports a broad definition of the term
pornog raphy collection using his                   “notice.” The guidelines recognize the
computer, and this transmission is part and         enhanced threat posed by the Internet,
parcel of the resulting transportation of the       which greatly increases the ease with
specified pornographic materials through            which child pornography may be traded.
the mail. The only question is whether a            This ease is heightened by an offender’s
message to one person constitutes                   ability to find a suitable partner in a child
“notice,” or whether the term comprehends           pornography “chat room,” with whom the
information posted to a wider audience, as          offender may then trade anonymous emails
Harrison contends. The guidelines offer             in order to establish terms for the sale or
little direct help on this question, as they        barter of explicit materials. This method of
do not define what constitutes a “notice.”          trafficking eliminates the need for
                                                    traditional forms of “notice and
    Harrison cites to dictionaries for the          advertisement” directed toward large
proposition that a notice is an                     numbers of people at random.
announcement, and an announcement is a
“public statement or notice.” Appellant’s                   Commenting on this method of
Reply Brief at 7 (citing to B LACK’S L AW           communication, the Fourth Circuit Court
D ICTIONARY (7th ed. 1999) and                      of Appeals found that “the very nature of
W EBSTER’ S I I N E W R I V E R SIDE                the Internet provides an ‘ominous method’
U NIVERSITY D ICTIONARY (1984)). On its             for anonymous predatory criminal
face, these definitions are counterintuitive,       conduct.” See Dotson, 324 F.3d at 260
since if the meaning of “notice”                    (quoting Richardson, 238 F.3d at 842).
comprehended that it was “public,” it               Because the sentencing guidelines are
would not be necessary to modify the                clearly aimed at targeting this sort of
definition of “announcement” by                     “ominous” conduct with enhanced

                                                9
punishment, it makes sense to define                 Harrison also used a computer to transmit
“notice” in a way that will encompass the            “notice or advertisement of the material.”
savvy and discreet trader in child
pornography, who is able to avoid the                _____________________
more dangerous route of p ublic
advertisement that would expose his
scheme to an unselect audience.

    In fact, the language of § 2G2.2(b)(5)
contemplates this broader definition of
“notice,” by contrasting it with an
“advertisement.” If “notice” is interpreted
to mean an announcement to the general
public, it leaves very little useful work for
the word “advertisement,” which is itself
defined as “a public notice.” See
W EBSTER’S N INTH N EW C OLLEGIATE
D ICTIONARY 59 (1988). We assume that by
including both terms, the drafters meant
there to be a difference between them –
“advertisement” implicates announcement
to a wider audience, while “notice” may
simply mean the communication of
information to another party. As a result,
we hold that by sending an email telling
the undercover agent that he possessed a
variety of pornographic “pics,” Harrison
used his computer to transmit a “notice” of
child pornography, as contemplated under
§ 2G2.2(b)(5).

                    IV.

  For the reasons set forth above, we find
that the District Court properly applied the
two-level sentencing enhancement under
U.S.S.G. § 2G2.2(b)(5), because “a
computer was used for the transmission of
the material” that Harrison later mailed to
the undercover agent, and because

                                                10
