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In a case that could have broad implications for how federal defendants are sentenced for child pornography gathered on the Internet, a three-judge panel of the 3rd U.S. Circuit Court of Appeals in Philadelphia struggled with how to apply the sentencing guidelines when counting computer files. Assistant Federal Defender Christopher S. Koyste argued on May 25 that his client, University of Delaware researcher Christian R. Mittermayr, was hit with too harsh a sentence for the 19 illegal images found on his office computer. Koyste said U.S. District Judge Sue L. Robinson erred by giving Mittermayr two “enhancements” — a two-point increase for having child pornography on his computer, and another two points for having more than 10 items. The error, he said, was in the second enhancement since the 19 illegal images — just a fraction of the 4,500 graphic files on Mittermayr’s hard drive — should have been treated like a single book since they were all in one computer folder. Under sentencing guideline 2G 2.4(b)(2), he said, a defendant gets a two-point increase for having 10 or more “books, magazines, periodicals, films videotapes or other items” containing visual depiction involving the sexual exploitation of a minor. Koyste said Robinson erred by defining each of the computer files as an “other item.” Under basic tenets of statutory construction, he said, “where general words follow specific words, a court should try to define those generic words consistent with those specific words.” If Robinson had followed that logic, he said, she would have treated the computer folder like a single book. But U.S. Circuit Judge Marjorie O. Rendell was not convinced. “A book could be two pages long. How do we draw these lines? Why can’t we say a file is an item? We can’t start quantifying or it just won’t work,” she wrote. Koyste said the courts must consider how visual images are stored on a computer. An expert witness for the defense testified at the sentencing about the Windows operating system and compared its folders to chapters of a book. The folder — and not the individual files in it — are the “other item,” he said, because the term “focuses on the whole, rather than the components of the whole.” U.S. Circuit Judge Samuel A. Alito asked Koyste to consider two hypothetical cases — one in which the defendant has 10 books, each of which has a single illegal image in it, and another in which the defendant has just one book, with 10 illegal images. The first would have 10 items and would get two points added to his offense level, Alito said, while the second would have only one item and would get no enhancement. “What the [Sentencing] Commission had to have been getting at,” Alito said, was that the defendant with 10 separate books probably acquired them on 10 occasions and could distribute them separately. “If that’s the theory, how does that translate into the computer field?” Alito asked. Koyste said computer users view their files in the same way that book readers do — one page at a time — by choosing items within a folder. But Rendell pressed the point, asking: “Isn’t the issue not one of storage, but, as Judge Alito said, acquisition of materials?” Since Mittermayr’s images were in different sub-folders, she said, it could be inferred that he got them at different times. Koyste said there was no evidence in the record about the times that the illegal files were acquired. “Well there isn’t with books either,” Rendell said. “It’s just implicit in the quantity. You don’t go out and buy 10 books.” Koyste insisted that if the lower court looked into the issue, it would find that Mittermayr obtained the images on “less than 10 separate occasions.” Rendell then turned to the issue of the two enhancements, asking if Koyste had objected to it before Robinson. Koyste said he had and urged the court to reverse on that ground. “It almost smacks of double counting in that I can’t envision, and I haven’t seen an offender who did not receive both of these enhancements,” he said. “It’s almost automatic due to the typical volume that an offender has.” Many computer child porn cases involve more than 1,000 images, he said, so Mittermayr’s 19 images “is an incredibly small number.” THE PROSECUTION Assistant U.S. Attorney Edmond Falgowski told the judges that a computer folder cannot be compared to books, magazines or videotapes because it is not a “medium of communication.” “Folders don’t have anything in them until a user puts something in them. It’s merely a location on a hard drive; it’s an address where a file exists,” he said. Unlike computer files, he said, a folder cannot be transmitted to someone else. “It’s merely an organizational aid — akin to the shelves in a library,” Falgowski said. But Rendell asked “is that in the record, what you just said, or are you assuming that’s common sense?” Falgowski said he was simply repeating what the defense expert had said in testimony. Judge Alito seemed to side with the defense, asking “isn’t there something about the way computers work that magnifies the number of items that will be involved in a computer case as opposed to what might seem to be a comparable case involving hard copies?” Buying a magazine such as Time on the newsstand is a single item, Alito said, but a computer user who visits Time’s Web site might download dozens of separate files and images. “Are you not going to create a lot of files, so that what would have been one magazine, had you purchased it on the newsstand, ends up being 30, 40 files when you download it onto your computer?” But Falgowski said computer files can be “manipulated” in ways that a magazine cannot, such as enlarging. The purpose of the sentencing guidelines, he said, was to address that fact by adding points both for the “manner” of having child pornography in digital form, and, separately, by punishing those who have a larger quantity. Rendell was unimpressed. “If he had had a book with these 19 pictures, he would have four levels less than he got,” she said. Rendell then asked whether a computer disk would be considered an “other item.” Falgowski said it would not. Although a disk is a medium of communication, he said, it simply holds computer graphics files. “Very much like a videotape,” Rendell offered. “If you had 10 disks, you could give them out just like books. Why shouldn’t we conclude that a disk is an item?” “For the same reason that courts have concluded that hard drives are not items,” Falgowski said. “Hard drives are comparable to libraries. A disk is comparable to perhaps a shelf of books.” REBUTTAL In a brief rebuttal, Koyste said the government was wrong in saying that folders cannot be transmitted to others. The entire contents of a folder that holds 20 files can be attached to a single e-mail, he said. Rendell asked: “The government argues that the folder is an organizational aid, but that the file is not. Is that correct? I mean, is the file a thing any more than the folder is?” Koyste said, “I would say that the file is like a page to the book, and the folder is what holds the individual pages.” In closing, he urged the judges to rule quickly, noting that Mittermayr is already serving his 27-month sentence and, if he wins a reduction, will very soon be eligible for release.

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