United States of America v. Gordon Grabau

United States Court of Appeals
For the Eighth Circuit
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No. 23-1741
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United States of America
Plaintiff - Appellee
v.
Gordon Grabau
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa
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Submitted: November 17, 2023
Filed: January 3, 2024
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Before KELLY, ERICKSON, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Gordon Grabau pled guilty to one count of receiving child pornography under
18 U.S.C. § 2252(a)(2) and (b)(1). The district court1 sentenced him to 144 months
of imprisonment and five years of supervised release. Grabau appeals his sentence,
1 The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.

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arguing the district court erred when it applied a two-level enhancement under the
United States Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) because
Grabau knowingly engaged in distributing child pornography. Reviewing the
district court’s “application of the Guidelines to the facts de novo” and “factual
findings . . . for clear error,” United States v. Berry, 930 F.3d 997, 999 (8th Cir.
2019), we affirm.
In April 2021, Federal Bureau of Investigation investigators—using the peer-
to-peer file sharing program BitTorrent—gathered 50 gigabytes of child
pornography from an IP address belonging to Grabau. Law enforcement later
searched Grabau’s home, finding 100 digital storage devices, including five that
contained child pornography. Across those five devices, Grabau possessed over
168,000 files of child pornography, which he had collected over six years. Grabau
pled guilty to receiving child pornography.
At sentencing, Grabau objected to the district court applying the two-level
enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for knowingly distributing child
pornography. Recognizing the government’s burden, the district court conceded it
was a “close call,” but concluded the government proved Grabau knowingly
distributed child pornography. The district court cited Grabau’s long-time use of the
BitTorrent software and his voluminous pornography stash. The district court also
emphasized Grabau’s demonstrated knowledge of computers and software, revealed
by his large collection of digital devices and his employment as a field technician
for a company that assists other businesses with technology issues.
“[T]he government bears the burden to prove by a preponderance of the
evidence that the defendant knowingly engaged in distribution.” United States v.
Martinez, 970 F.3d 986, 989 (8th Cir. 2020). As the defendant did in Martinez, see
id. at 988, Grabau argues the 2016 amendment to the Guidelines—which added the
“knowingly” scienter requirement to the enhancement—abrogated our opinion in
United States v. Dodd, 598 F.3d 449 (8th Cir. 2010). That opinion reasoned, “a fact-
finder may reasonably infer that the defendant knowingly employed a file sharing

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program for its intended purpose”—that is, to share files—unless the defendant
provides “concrete evidence of ignorance.” Id. at 452. Thus, if the Dodd framework
were abrogated, then the government needs to present “direct evidence of [Grabau’s]
knowledge beyond the simple fact that files were transferred through a file-sharing
program.” Martinez, 970 F.3d at 989. Grabau argues the government lacked such
evidence.
There may be merit to the argument that Dodd should be disregarded. In the
2016 amendment, the Sentencing Commission adopted the approach of three circuit
courts who required the government to show that a defendant knowingly distributed
child pornography, U.S.S.G. supp. to app. C, amend. 801, at 144–45 (U.S.
Sentencing Comm’n 2016), but it “did not address whether the Dodd inference was
reasonable or sufficient.” Martinez, 970 F.3d at 988. Based on the views of the
Commission, should we view the Dodd formulation as suspect? See U.S.S.G. supp.
to app. C, amend. 801, at 144–45 (discussing Dodd, but “generally adopt[ing]” the
approaches of three different circuits). Or is a defendant’s use of a file-sharing
program “sufficient by itself to support an inference that the defendant had the
requisite knowledge”? Martinez, 970 F.3d at 989.
Whatever the merit of Grabau’s argument regarding Dodd, as in Martinez, we
need not answer that question because there is “direct evidence of knowledge beyond
the simple fact that files were transferred through a file-sharing program.” Id.
Indeed, the district court found direct evidence of Grabau’s “knowledge” beyond
him simply using BitTorrent or possessing a cache of pornography. As the district
court stated, Grabau had “a greater and superior knowledge than most people do
about how software works”: he collected hundreds of digital devices, he earned a
bachelor’s degree in computer science, and he was a field technician for a technology
company. Thus, the totality of circumstances justified the district court’s finding
that, by using peer-to-peer software, Grabau knew he would “make his child
pornography available to other people to download, just as has happened in this
case[.]”

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Though we agree with the district court that this case presents a close call, the
district court did not commit clear error in finding, by a preponderance of evidence,
that Grabau knowingly distributed child pornography. Thus, there was no legal error
in applying the enhancement.
Accordingly, we affirm the judgment of the district court.
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