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In Order to 'Distribute,' Someone Must Have Received It: 3rd Cir.

By Mark Wilson, Esq. on September 04, 2014 | Last updated on March 21, 2019

If a tree falls in the woods, does it make a sound? And if a person puts child pornography in a shared folder, but no one downloads it, has that person "distributed" child pornography? By a 2-1 margin, the Third Circuit said "no."

David George Husmann was already on supervised release for a child pornography conviction when the probation department was alerted that his computer had accessed pornographic websites. A probation officer visited his house, ultimately seizing four USB flash drives. Husmann also had file-sharing applications installed on his computer. Several of the pornographic files were in a "shared" folder that could be made available to others on the file sharing network.

Plain Old Statutory Interpretation

As a matter of statutory interpretation, if Husmann makes files available for download, but no one downloads them, has he "distributed" them? The government said that the mere act of making a file available qualifies as "distribution."

But the law -- 18 USC § 2252 -- doesn't define "distribute," so the court had to resort to the ordinary dictionary definition, which means "to deliver." This made sense in light of jury instructions relating to distributing drugs, which require transferring "possession or control of a controlled substance from one person to another."

The canons of statutory construction require reading a statute in such a way as to avoid redundancy. Thus, the dictionary definition of distribution makes sense in light of other federal statutes surrounding child pornography, which separately prohibit offering, promoting, and attempting to distribute. Congress is presumed not to use four separate words if their intent is to prohibit the same act.

It's unclear why the government didn't charge Husmann with attempted distribution of child pornography, which is also a crime. He clearly had the specific intent to distribute it, as evidenced by placing it in a shared folder where others could download it. The fact that no one downloaded it was a fortuity outside of his control, placing his actions well within the confines of "attempt."


Judge Franklin Van Antwerpen dissented, believing that the majority's narrow definition would, as a matter of public policy, "create a system in which a person who intentionally posted child pornography on the Internet, knowing it is accessible to hundreds, if not millions, of individuals," would not be guilty of distribution.

Again, however, the dystopian future Judge Van Antwerpen posits will not come to pass: There are other statutes -- and verbs within the same statute -- that can cover all sorts of conduct. It could be an offer, or a solicitation, or an attempt. The dissent misses the point: Public policy aside, merely placing a file in a shared folder might show an intent to distribute, but the crime of distribution is not complete until someone else downloads the file. Much of the dissent's concern about the evils of child pornography are readily dealt with in the framework of existing law. Or, as the dissent itself suggests in a footnote, Congress can take the initiative to change the definition of the word "distribute." But a court can't do it alone.

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