United States of America v. Warren Siepman

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2207
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
WARREN SIEPMAN ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cr-130 — Harry D. Leinenweber, Judge.
____________________
A RGUED M AY 13, 2024 — DECIDED J ULY 11, 2024
____________________
Before SCUDDER , ST. EVE, and PRYOR , Circuit Judges.
ST. E VE, Circuit Judge. On three separate occasions, an au-
tomated government software program accessed and down-
loaded child pornography from Warren Siepman’s computer
over a peer-to-peer file sharing network. The central issue in
this appeal is whether that amounts to “transportation” of
child pornography under federal law. It does.

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2 No. 23-2207
I. Background
A. Factual Background
In late 2016, Homeland Security Investigations (“HSI”)
agents began investigating individuals making child pornog-
raphy available to others on the internet over peer-to-peer file
sharing networks. Peer-to-peer file sharing programs enable
computer users to share and receive electronic files over the
internet with a network of others. See United States v. Clarke,
979 F.3d 82, 87 (2d Cir. 2020). The name “peer-to-peer” comes
from the network created when two or more computers con-
nect directly with each other, without going through a sepa-
rate server. See generally Metro-Goldwyn-Mayer Studios Inc. v.
Grokster, Ltd., 545 U.S. 913, 919–20 (2005). Users of a peer-to-
peer file sharing network can search for files that others have
made available, browse files that a specific user has made
available, and download files directly from other users. See
United States v. Husmann, 765 F.3d 169, 171 (3d Cir. 2014). Us-
ers can also make their own files accessible to others, usually
by placing them in a designated folder available to the net-
work’s users. Id. When one user makes files available to oth-
ers, however, those files remain local on the user’s computer
until another user accesses and downloads them. Id.
HSI agents here used a proprietary peer-to-peer software
program called “eMule” that they engineered to search for
specific child pornography files others were making available
over a peer-to-peer network. The program combed the net-
work by querying the unique alphanumeric identifiers
(known as “hash-IDs”—essentially, the files’ digital finger-
prints) of already-known child pornography files. Once the
program identified a known child pornography file that a net-
work user had made available, it connected to that user’s

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No. 23-2207 3
computer and downloaded the entire file. The program’s
search and download functions operated without human in-
tervention, and it ran constantly on a secure government com-
puter in a locked room during the yearslong investigation.
Law enforcement monitored its activity several times per day.
Using this program, an HSI agent discovered that Warren
Siepman made child pornography available to others for
download on a peer-to-peer file-sharing network called
“Shareaza.” Between October 2016 and March 2017, the pro-
gram identified and then downloaded child pornography
from an IP address associated with Siepman on three separate
occasions. Forensic examination of hard drives later seized
from Siepman revealed over one thousand child pornography
files and showed that the computer’s user had searched for
child pornography on Shareaza. Siepman, in an interview
prior to his arrest, also admitted to viewing child pornogra-
phy on his computer, using Shareaza to view and download
child pornography, and knowing that he was sharing files
with others on the network.
B. Procedural Background
A grand jury indicted Siepman, charging him with three
counts of transportation of child pornography, 18 U.S.C.
§ 2252A(a)(1), and one count of possession of child pornogra-
phy, 18 U.S.C. § 2252A(a)(5)(B). The three transportation
counts stem from the three specific files the government
downloaded from Siepman’s computer between October 2016
and March 2017.
The case proceeded to trial, at which the court instructed
the jury on the elements of the transportation charge. That in-
struction directed the jury to return a guilty verdict if it found

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4 No. 23-2207
beyond a reasonable doubt that (1) Siepman knowingly trans-
ported the material identified in the indictment using any
means or facility of interstate commerce; (2) the material was
child pornography; and (3) Siepman knew that the material
depicted one or more actual minors engaged in sexually ex-
plicit conduct. See Seventh Cir. Pattern Crim. Jury Instructions
(2021), 18 U.S.C. § 2252A(a)(1), pg. 914.
In addition to that instruction, the government sought an
instruction defining the term “transports” in the peer-to-peer
file sharing context. Siepman objected, arguing that it was un-
necessary and likely to confuse the jury. The court overruled
Siepman’s objection and gave the following instruction:
An individual transports a computer file by computer
when he knowingly makes the computer file available
for others to download using peer-to-peer file sharing
[] and another individual downloads that computer
file.
The jury found Siepman guilty on all four counts.
After trial, Siepman moved for a judgment of acquittal
notwithstanding the verdict or, alternatively, for a new trial.
See Fed. R. Crim. P. 29(c), 33(a). The motion primarily con-
cerned the transportation counts. As relevant here, Siepman
argued that the district court erred in its jury instruction de-
fining “transports,” and that in any event, the evidence was
insufficient to prove “another individual” downloaded the
files from his computer since the government relied on auto-
mated software to conduct its investigation.
The district court denied the motion, finding the instruc-
tion legally accurate and the evidence sufficient. As to
Siepman’s sufficiency argument, the court determined “an

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No. 23-2207 5
individual” had downloaded the files on the grounds that
software “can never operate independent of human design,”
a human “wrote and initiated the software,” and an individ-
ual then received the image, reviewed it, and identified it as
child pornography.
Siepman now appeals.
II. Analysis
This appeal concerns only Siepman’s convictions for
transporting child pornography. As below, he contends that
the district court erred in its instruction to the jury defining
“transports,” and that the evidence was insufficient to convict
him of that crime. Both arguments really get at a single ques-
tion: whether Siepman’s actions amount to “transportation”
within the meaning of § 2252A(a)(1) where, as here, the gov-
ernment employs automated software to download the illicit
material from the defendant over a peer-to-peer file sharing
network. With that in mind, we take each alleged error in
turn.
A. Jury Instruction
We review the legal accuracy of jury instructions de novo,
but we evaluate their particular phrasing for abuse of discre-
tion. United States v. Edwards, 869 F.3d 490, 496 (7th Cir. 2017).
The district court enjoys “substantial discretion” in formulat-
ing its instructions. United States v. Dickerson, 705 F.3d 683, 688
(7th Cir. 2013) (quoting United States v. Noel, 581 F.3d 490, 499
(7th Cir. 2009)). If those instructions accurately reflect the law,
we will reverse only if it appears that the instructions both
misled the jury and prejudiced the defendant. United States v.
White, 95 F.4th 1073, 1079 (7th Cir. 2024); Dickerson, 705 F.3d
at 688. We review the district court’s decision to give or refuse

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6 No. 23-2207
to give a particular instruction for abuse of discretion. United
States v. Campos, 541 F.3d 735, 744 (7th Cir. 2008).
The district court instructed the jury that an individual sat-
isfies the “transport” element of § 2252A(a)(1) “when he
knowingly makes the computer file available for others to
download using peer-to-peer file sharing [] and another indi-
vidual downloads that computer file.” That instruction accu-
rately reflects the law and the plain meaning of “transport” in
the peer-to-peer network file sharing context.
“Transport” means moving something “from one place to
another.” Merriam-Webster’s Collegiate Dictionary (10th ed.
1994); see also transport, Black’s Law Dictionary (6th ed. 1990)
(“To carry or convey from one place to another.”). An
internet-connected computer can act as an agent of
transportation, just like any car on the road or plane in the air.
See United States v. Chaparro, 956 F.3d 462, 470 (7th Cir. 2020)
(“[T]he images on the hard drive were downloaded from the
Internet, so the Internet transported them.”). So, when a file
moves from one computer to another over the internet, it is
“transported” within the meaning of § 2252A(a)(1). See Clarke,
979 F.3d at 93 (“The use of the Internet to move video files
from [the defendant’s] computer to the government agents’
computer constituted transportation using a means or facility
of interstate commerce within the meaning of § 2252(a)(1).”).
We have accordingly affirmed child pornography
transportation convictions under § 2252A(a)(1) where the
defendant uploaded the illicit materials to a website, see
United States v. Davis, 859 F.3d 429, 434 (7th Cir. 2017), or sent
them over email, see United States v. Tenuto, 593 F.3d 695, 697
(7th Cir. 2010).

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No. 23-2207 7
Nothing about the mechanics of peer-to-peer file sharing
changes the basic principle that computer-to-computer move-
ment constitutes transportation. When a defendant makes a
file available to a network of others from a computer in one
location, and another user then accesses and downloads that
file onto his own computer in another location over a peer-to-
peer network, the defendant has caused that file to be “trans-
ported,” just as surely as if he uploaded it to a website or sent
it over email. As the Second Circuit explained in reaching the
same conclusion in United States v. Clarke:
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,
[the defendant] himself perform[s] 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.
979 F.3d at 94. The district court therefore made no error in
instructing the jury as it did.
Siepman nevertheless contends the district court errone-
ously based its instruction on cases dealing with the “distri-
bution” of child pornography under 18 U.S.C. § 2252(a)(2).
See, e.g., United States v. Owens, 18 F.4th 928, 930–31 (7th Cir.
2021) (holding that “[i]t is criminal ‘distribut[ion]’ of child
pornography within the meaning of 18 U.S.C. § 2252(a)(2) to
knowingly make a file containing child pornography availa-
ble for others to access and download via a peer-to-peer

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8 No. 23-2207
filesharing network” (citing United States v. Ryan, 885 F.3d
449, 453 (7th Cir. 2018))). That was problematic, he argues, be-
cause we have previously rejected attempts to equate “distri-
bution” with “transportation.” See United States v. Hyatt, 28
F.4th 776, 785 (7th Cir. 2022).
But Hyatt, on which Siepman relies, does not stand for the
idea that “transportation” and “distribution” can never over-
lap. There we simply rejected the government’s proposition
that every act of transportation “is, ipso facto, an act of distri-
bution.” Id. at 783. We did not hold that the same set of facts
could not support both distribution and transportation con-
victions such that the instructions on their operative verbs
cannot resemble each other in some cases. In fact, they can.
And in this case, they do.
Although “separate crimes,” distribution and transporta-
tion offenses are “closely connected.” Tenuto, 593 F.3d at 697.
As we have said before, “a person who has distributed child
pornography has likely transported it, and a person who
transports it is likely to eventually distribute it.” Id. Here,
Siepman’s conduct could have triggered either offense. By
making child pornography available over the network to gov-
ernment agents who then downloaded it, Siepman both dis-
tributed child pornography (to government agents) and
transported it (to another computer). See, e.g., Owens, 18 F.4th
at 930–31; United States v. Chiaradio, 684 F.3d 265, 282 (1st Cir.
2012) (“When an individual consciously makes files available
for others to take and those files are in fact taken, distribution
has occurred.”). That the district court’s instruction might
have worked equally well for both offenses does not make it
wrong.

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No. 23-2207 9
We find no error in the district court’s decision to give the
instruction in the first place, either. While Siepman complains
that the jury could have gone without the instruction, the dis-
trict court did not abuse its discretion in opting to explain, in
line with our caselaw, the term as it applied to the unique
technological context of peer-to-peer file sharing. There is no
evidence that the ensuing instruction confused the jury.
B. Sufficiency of the Evidence
We next consider whether there was sufficient evidence to
support the transportation convictions. Our review on that
front is de novo, but highly deferential. United States v. White,
95 F.4th 1073, 1078 (7th Cir. 2024). “[W]e review the evidence
presented at trial in the light most favorable to the govern-
ment and draw all reasonable inferences in its favor.” United
States v. Hidalgo-Sanchez, 29 F.4th 915, 924 (7th Cir. 2022)
(quoting United States v. Anderson, 988 F.3d 420, 424 (7th Cir.
2021)). “Ultimately, we ‘will overturn a conviction only if, af-
ter reviewing the record in this light, we determine that no
rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt.’” Id. (quoting An-
derson, 988 F.3d at 424).
Siepman fails to meet this burden. Relying on the court’s
“transports” instruction, Siepman contends there was no evi-
dence that “another individual” downloaded the files because
the government’s automated software did the downloading.
We disagree. A government agent initiated the software, kept
tabs on the investigation’s progress by checking its results at
least twice a day, and then reviewed and maintained logs re-
cording communication between the government’s computer
and Siepman’s. A jury could reasonably find that “an individ-
ual” downloaded the files based on this human activity.

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10 No. 23-2207
That automated software did the heavy lifting of searching
for and downloading the illicit material does not remove the
government agent from the equation. See Owens, 18 F.4th at
931 (acknowledging the government’s “investigative practice
where it employs a confidential software program to partici-
pate in the peer-to-peer network and detect and download
child pornography files shared therein”). The software may
be automated, but it is not sentient. It required a government
agent to program it, dispatch it, and monitor its progress. We
would ignore reality to attribute the program’s every act en-
tirely to a computer and thus find it inappropriate to draw
parallels between this case and the civil cases involving ro-
bocalls and bot activity on which Siepman relies. Viewed in
the light most favorable to the government, the level of hu-
man involvement here is more than enough to sustain the
conviction.
Moreover, requiring a government agent to manually click
“download” would do no more than draw an artificial line
between human activity and computer activity. We would
never say that a defendant has not “transported” child por-
nography over email on the basis that the email client (Gmail,
or its ilk), rather than the defendant, accessed the internet and
executed the transfer. See Tenuto, 593 F.3d at 697. Nor would
that result change if the defendant drafted the email, but then
programmed it to send automatically days later. In both sce-
narios, “an individual” executed the act in question. There is
no reason to reach a different conclusion in this case.
In any event, we would sustain Siepman’s convictions
even if the software was solely responsible for the download
activity. Unlike a distribution conviction under § 2252A(a)(2),
a transportation conviction under § 2252A(a)(1) does not

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No. 23-2207 11
require another person to have received the illicit material—
the government need only show that the defendant moved
child pornography or caused it to be moved. See Hyatt, 28
F.4th at 783 (“A person can ‘transport’ an item without distrib-
uting it to anyone.”); United States v. Fall, 955 F.3d 363, 374 (4th
Cir. 2020) (“[Transportation] does not require conveyance to
another person.”). As applied to the peer-to-peer file sharing
context, that movement can occur regardless of who, or what,
does the downloading. Here Siepman does not contest that a
download occurred. It is therefore irrelevant whether we at-
tribute that download to person or program—either way, the
files started on Siepman’s computer and ended up on the gov-
ernment’s after Siepman made them available. Those facts
alone suffice to uphold the convictions.
AFFIRMED

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