United States v. Fernando Clarke (2d Cir. October 2020)

The Federal Docket

Sex Offenses/Child Pornography – A defendant can commit the crime of “transporting” child pornography by knowingly and intentionally joining a file-sharing network, downloading files from the computers of other network users to his own, storing those files in a folder that is shared with other network users, and maintaining his folder’s connection to the network.

Most relevantly here, Clarke challenged his conviction for transporting child pornography under 18 U.S.C. 2252(a)(1), which criminalizes knowingly transporting such illicit material by interstate communications. The two counts in the indictment were based on government agents downloading video files from Clarke’s computer on two separate occasions.

Clarke argued on appeal that there was insufficient evidence that he knew he was making the child pornography files available for others to download and that, regardless, the transportation involved in government agent’s downloading files from his computer, “without participation on his part,” does not satisfy the statutory requirement of transportation under 2252(a)(1).

The Second Circuit held that there was sufficient evidence of Clarke “transporting” child pornography because there was sufficient evidence “to establish he knew that his downloading of files to his uTorrent folder enabled other users of BitTorrent to download from his folder.” The Court noted that Clarke had been using the file sharing network to download child pornography for several years and had admitted to law enforcement in an interview that he knew how “peer-to-peer programs” operate by sharing files between users.

The Court acknowledged that the manner in which Clarke was answering the agent’s questions could support an inference that the agent had explained file sharing to Clarke, but held that it was not the only permissible inference the jury could make. The Court also distinguished this case from the case in United States v. Carroll, where there were no statements made by the defendant or other evidence that he knew his peer-to-peer program automatically distributed files.

The Court further held that Clarke’s actions amounted to “transportation” given Clarke’s lack of action when the government downloaded his files. The Court concluded that it did, holding that:

“by knowingly and intentionally joining the file-sharing network, downloading files from the computers of other network users to his own, storing those files in a folder that was shared with other network users, and maintaining his folder’s connection to the network, Clarke himself performed actions that would constitute the crime of knowing transportation of the files when, as anticipated, another user of the file-sharing network caused the files to be downloaded and sent from his computer to the other user’s computer.”

The Court noted that other circuits had resolved the issue similarly regarding child pornography “distribution,” which the Court concluded was similar enough to apply the same reasoning. The Court concluded that “By wittingly participating in a file-sharing network and downloading files from the computers of others, Clarke implicitly invited other participants in the file-sharing network to share his files, and enabled them to do so.” It did not matter that it was the government initiating the transportation, and it did not matter that Clarke did not “intend” to share child pornography.

On appeal from the Eastern District of New York

Opinion by Leval, joined by Walker and Carney

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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