Grzybowicz: Distribution requires more than sending images to oneself

In U.S. v. Grzybowicz, No. 12-13749 (April 4, 2014), the Court affirmed two child pornography convictions and reversed a third one. The Court rejected Grzybowicz’s challenge to the sufficiency of the evidence for producing and possessing child pornography in violation of 18 U.S.C. § 2252A, noting that it would have been utterly contrary to the evidence for the jury to have found that the photos at issue were not a “lascivious exhibition of the genitals or pubic area.” The Court, however, found merit in Grzybowicz’s challenge to the sufficiency of the distribution count. The Court noted that Grzybowicz sent images from his cellphone to his computer. Thus “there is no evidence that Grzybowicz sent the images of child pornography to anyone other than himself.” The images on the computer were not stored in a shared folder accessible to other and were not uploaded to any publicly accessible website. Noting that “[w]e do not commonly speak of delivering to ourselves things that we already have,” the Court distinguished cases involving allowing access to images on a computer through a peer-to-peer program.