This post examines two decisions by appellate courts in
Florida. We will begin with Smith v.
State, 190 So.3d 94 (District Court of Appeal of Florida, Fourth District
2015) (“Smith v. State #1”). The court began the opinion by
explaining that
Smith pleaded guilty in August 2011, to
twenty counts of transmitting child pornography to an undercover officer via
the internet. See § 847.0137, Fla. Stat. (2010) (`Transmission
of pornography by electronic device or equipment prohibited’).
The information alleged twenty counts
as follows:
DUNCAN JASON SMITH on or about April
13, 2010, in the County of Palm Beach and State of Florida, did transmit child
pornography, as defined in section 847.001, Florida Statute, knowing or
having reason to know it was child pornography, to another person in Florida or
in any other jurisdiction, or from any jurisdiction outside of Florida to any
person in the State of Florida, contrary Florida Statutes
847.0137(2) and (3). (3 DEG FEL)
Factually, Smith used a file-sharing
program that was designed to allow one-on-one access to stored data. Smith
loaded pornographic images into a specific computer file. Authorization was
required to gain access to it. Smith sent a `friend’ request to a Palm Beach
County undercover detective, which authorized the detective to access certain
of Smith's files that Smith had chosen to share with other users. The
detective downloaded various images of child pornography from these files.
Apart from the “friend” request, Smith did not know that the files were
actually downloaded.
Smith was arrested, and in a post-Miranda statement
admitted that he had been trading in child pornography for ten years. Through a
negotiated plea, Smith pled guilty to the charges and was sentenced to clusters
of five-year sentences, some of which were run consecutively, to constitute a
ten-year sentence. This was to be followed by fifteen years of sex
offender probation.
Smith v. State #1,
supra.
The Court of Appeals explained that after Smith’s
conviction and sentence, the Fifth District decided Biller, in which it held that a defendant who
used a similar process of file-sharing could not be guilty of transmitting
child pornography, because he did not send the pornography,
within the meaning of the statute, by using file-sharing. Smith then filed a
motion for post conviction relief, claiming in part that, because Biller found
that transmission by method of file-sharing was not a transmission within the
meaning of the statute, he was denied due process by being convicted of a
non-existent crime. The trial court denied relief. We affirm, disagreeing
with Biller.
Smith v. State #1,
supra (emphasis in the original).
The Court of Appeals went on to explain that
Section 847.0137 makes it a crime to transmit child
pornography:
[A]ny person in this state who knew or
reasonably should have known that he or she was transmitting child pornography,
as defined in s. 847.001, to
another person in this state or in another jurisdiction commits a felony of the
third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
§ 847.0137(2), Fla. Stat. (2010). That same
statute defines `transmit’ as:
[T]he act of sending and causing to be
delivered any image, information, or data from one or more persons or places to
one or more other persons or places over or through any medium, including the
Internet, by use of any electronic equipment or device.
§ 847.0137(1)(b), Fla. Stat. (2010).
Smith v. State #1,
supra.
The court outlined the Biller
court’s ruling and explained why it did not agree with that ruling:
In Biller, the Fifth
District was confronted with whether the definition of “transmit” included the
use of a similar file-sharing arrangement, as occurred in this case. Just as
here, Biller had placed the pornographic images in a shared folder of a
file-sharing program and had given authorization to access the folder to
sheriff's agents. The court noted that the legal issue it addressed was whether
the pornographic images were `sent’ within the meaning of the statute. Relying
on statutory lenity, the court concluded that to `send’” within the statutory
definition required a purposeful act by the defendant. It reasoned:
The State concedes that Appellant did
not affirmatively dispatch the images using a function on his computer. Indeed,
Appellant had no knowledge that agents retrieved the images. The State posits
that Appellant essentially sent the files because he maintained them in a
shared folder and knowingly allowed other Limewire subscribers to access them.
Conversely, Appellant argues that `send’ means a purposeful act to deliver the
files, rather than the mere allowance of access to the files.
One definition of the word `send’ is, `to cause to go or be carried.’ Webster's New World College Dictionary 1305
(4th ed. 2001). This definition supports Appellant's construction of the
statute, although the State's proffered construction is not unreasonable. Under
statutory lenity principles, however, when a criminal statute is susceptible of
more than one construction, we are compelled to construe the statute most
favorable to Appellant. § 775.021(1), Fla. Stat.
Biller, 109 So.3d at 1241.
The court reversed appellant's convictions.
Smith v. State #1,
supra.
The Court of Appeals for the Fourth District explained that
We disagree with Biller 's
interpretation of the statute. The Fifth District focused only on the word
`send’ in construing the statute. When we consider the entire language of the
statute, we conclude that the use of the file-sharing program, where the
originator affirmatively grants the receiver access to his files, who can then
download the pornographic images over the internet through an electronic
device, constitutes `transmission’ of pornography.
The statutory definition of `transmit’
requires an act of `sending and causing to be delivered.’ § 847.0137(1)(b),
Fla. Stat. (2010). The Fifth District used the dictionary definition of `send’
as `to cause to go.’ We will not disagree that is one of many related
definitions of `send.’ But the second phrase in the statute is equally important.
`Cause to be delivered’ has been defined in connection with a federal mail
fraud statute as requiring reasonable foreseeability of delivery:
Where one does an act with knowledge
that the use of the mails will follow in the ordinary course of business, or
where such use can reasonably be foreseen, even though not actually intended,
then he ‘causes' the mails to be used.
Pereira v. United States, 347U.S. 1, 8–9 (1954) (interpreting 18 U.S.C. § 1341).
Smith v. State #1,
supra.
The Fourth District Court of Appeals then articulated its
reasoning, and its ruling, in this case:
[i]n the context of transmission using
the internet, when the originator creates the shared file folder and
specifically authorizes others to download the contents of that folder, he is
`sending’ information in the form of the `friend’ request and is `causing’ the
pornographic images to be delivered to another. It is reasonably foreseeable
that the pornographic images will be accessed and downloaded. Thus, under the
statute, Smith created the shared file space populated with pornographic
images; he `sent’ the `friend’ request to the undercover detectives, thereby
granting them access; and he reasonably could foresee that they would access
the folder and download the images, thus `causing’ them to be delivered to
another. Indeed, in his subsequent statements he admitted to trading in
pornographic images, which also means that delivery is contemplated. Thus, he
`sent and caused to be delivered’ the pornographic images. The use of the
phrase `cause to be delivered’ in the statute negates the construction that a
person must himself deliver the files to another person, such as by attaching
them to an email.
That the Legislature intended the
definition of `transmit’ in section 847.0137(1)(b), Florida Statutes
(2010), to be broader than merely purposely sending images to an individual can
be gleaned from a comparison of the definition of `transmit’ in section
847.0138, Florida Statutes. That section prohibits `[t]ransmission of material
harmful to minors to a minor by electronic device or equipment[.]’ In that
statute, `transmit’ is defined as `to send to a specific individual known by
the defendant to be a minor via electronic mail.’ § 847.0138(1)(b), Fla.Stat. (2010). Thus, where the Legislature wanted to restrict `transmission’ to
the act of sending something directly to an individual by e-mail, it knew how
to define the term narrowly. It did not create such a narrow definition
in section 847.0137(1)(b), Florida Statutes. Consequently, we see no need
to apply the rule of lenity to section 847.0137. Kasischke v.
State, 991 So.2d 803, 814–15 (Florida Supreme Court 2008) (noting that
the rule of lenity is `a canon of last resort’).
Smith v. State #1,
supra.
The opinion concludes with the following:
Because we conclude that the exchange
of the pornographic images through the use of the file-sharing program
constitutes `transmission’ within the meaning of the statute, we affirm the
order denying post conviction relief.
Smith v. State #1,
supra.
That, though, was not the end of the issue. Smith filed a `motion for post conviction
relief, arguing that his use of a computer file-sharing program did not
constitute transmission’ with the Fifteenth Judicial Court, Palm Beach County,
which the court denied. Smith v. State #2,
2016 WL 4702108 (Supreme Court of Florida 2016).
After the County Court denied his request, Smith appealed
his conviction to the Supreme Court of Florida, which began its analysis of the
issue he raised on appeal by reviewing what had happened with the case in the
other courts. Smith v. State #2, supra.
The Supreme Court then began its
analysis of the issue in question by explaining that
`Because the conflict issue involves
the interpretation of a statute, this Court's review is de novo.’ Polite
v. State, 973 So.2d 1107, 1111 (Florida Supreme Court 2007). `The
object of statutory interpretation is to determine legislative intent.’ Crews
v. State, 183 So.3d 329, 332 (Florida Supreme Court 2015). `To discern
legislative intent, this Court looks first to the plain and obvious meaning of
the statute's text[.]’ W. Fla. Reg'l Med. Ctr., Inc. v. See, 79
So.3d 1, 9 (Florida Supreme Court 2012). This Court has consistently recognized
that “[w]hen the statute is clear and unambiguous, courts will not look behind
the statute's plain language for legislative intent or resort to rules of
statutory construction to ascertain intent.” Borden v. E.–Eur. Ins.
Co., 921 So.2d 587, 595 (Florida Supreme Court 2006) (quoting Daniels
v. Fla. Dep't of Health, 898 So.2d 61, 64 (Florida Supreme Court 2005)).
Section 847.0137 makes it a crime
to transmit child pornography:
[A]ny person in this state who knew or
reasonably should have known that he or she was transmitting child pornography,
as defined in s. 847.001, to another person in this state or in another
jurisdiction commits a felony of the third degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
§ 847.0137(2), Fla. Stat. (2010). That
same statute defines `transmit’ as:
[T]he act of sending and causing to be
delivered any image, information, or data from one or more persons or places to
one or more other persons or places over or through any medium, including the
Internet, by use of any electronic equipment or device.
§ 847.0137(1)(b), Fla. Stat. (2010).
Smith v. State #2,
supra.
The Supreme Court went on to explain that
Smith argues that he did not commit the
act of `sending and causing to be delivered’ child pornography within the plain
meaning of the statute and, in the alternative, that the statutory definition
of `transmit’ is ambiguous. We disagree. The statute unambiguously prohibits
the conduct for which Smith was convicted. Smith sent child pornography images
to an electronic `place; by loading them into a specific computer file and,
through his use of the file-sharing program, made those images accessible to
third parties for whom access was authorized. Smith then sent a `friend’
request to a third party which authorized the third party—through the
file-sharing program—to obtain access to the place to which the images had been
sent. By those purposeful acts, Smith caused the delivery of the images to the
third party to take place.
We thus agree with the Fourth District
that Smith `sent and caused to be delivered’ child pornography under the
statutory definition of `transmit.' \Smith, 190 So.3d at 97.
What Smith did is the electronic equivalent of placing a locked box filled with
pornographic photographs on his front porch, telling a `friend’ that there is
something on the front porch he might want to see, and sending the friend a
spare key to the locked box. In such hypothetical circumstances, although it
might be said that Smith did not directly send and deliver those photos to the
friend, it is undeniable that once the friend obtained access to the photos,
Smith had indeed caused the delivery to the friend of the photos which he
previously had sent to his front porch. Accordingly, we hold that the use of a
file-sharing program, where the originator affirmatively grants the receiver
access to the originator's child pornography files, constitutes the
transmission of child pornography under the plain meaning of section
847.0137.
Biller erred by applying
the rule of lenity to section 847.0137 based on an unreasonably
cramped reading of the statute. Smith correctly declined to apply
the rule of lenity to section 847.0137.
Smith v. State #2,
supra.
The Supreme Court therefore held that Smith
`committed the act of `sending and
causing to be delivered’ child pornography by using the file-sharing program,
disapproving Biller v. State, 109 So.3d 1240.
Smith v. State #2,
supra. So, Smith lost.
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