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The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1991

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United States of America, *

*

Appellee, *

* Appeal from the United States 

v. * District Court for the

* Western District of Missouri.

Walter E. Sewell, also known as *

food4less, *

*

Appellant. *

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Submitted: November 13, 2007

Filed: January 17, 2008

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Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.

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WOLLMAN, Circuit Judge. 

Walter E. Sewell was charged, inter alia, with publishing or causing to be

published a notice that offered to distribute child pornography in violation of 18

U.S.C. § 2251(d)(1)(A). Sewell filed a motion to dismiss for failure to state an

offense. The district court1

 denied the motion, and Sewell appeals. We affirm. 
2

This count was charged by information after Sewell waived his right to be

proceeded against by indictment. 

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I. Background

Sewell admits that he acquired and distributed child pornography using a peerto-peer file-sharing program called Kazaa. Kazaa is a computer program that connects

a computer to other computers on which the Kazaa program is also running. Kazaa’s

purpose is to allow users to download each other’s shared files. The Kazaa program

allows the user to designate which folders—and therefore which files—on his

computer are shared with other Kazaa users. Each shared file has several descriptive

fields that are viewable by other Kazaa users. These fields generally describe the

file’s contents and can be edited by a file’s possessor. Kazaa makes each user’s

shared files discoverable to other users by allowing any user to perform a keyword

search of the descriptive fields of all shared files. Files with descriptive fields

containing the search term are listed for the searcher, who can then see all the

descriptive fields for each file on the list. Based on these descriptions, the searcher

decides which of the available files to download onto his computer. The searcher is

likewise free to refrain from downloading a file in which, based on its descriptive

fields, the searcher is uninterested. 

 Sewell was indicted on several counts, including publishing and attempting to

publish a notice that offered to distribute child pornography, distributing and

attempting to distribute child pornography, and possession of child pornography in

violation of various provisions of 18 U.S.C. §§ 2251 and 2252. In a prior

interlocutory appeal stemming from those charges, we reversed an order that would

have prohibited the government from showing at trial some of the actual pictures

recovered from Sewell’s computers. See United States v. Sewell, 457 F.3d 841 (8th

Cir. 2006). Sewell was subsequently charged with one count of publishing a notice

that offered to distribute child pornography in violation of § 2251(d)(1)(A).2

 He then
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pleaded guilty to one count of distributing child pornography and to one count of

publishing a notice. He preserved, however, his right to file the motion to dismiss the

§ 2251(d)(1)(A) charge and to appeal an adverse disposition of that motion. 

II. Analysis

We review de novo a district court’s denial of a defendant’s motion to dismiss

an indictment for failure to state an offense. United States v. Hirsch, 360 F.3d 860,

863 (8th Cir. 2004). An indictment adequately states an offense if: 

it contains all of the essential elements of the offense charged, fairly

informs the defendant of the charges against which he must defend, and

alleges sufficient information to allow a defendant to plead a conviction

or acquittal as a bar to a subsequent prosecution. An indictment will

ordinarily be held sufficient unless it is so defective that it cannot be

said, by any reasonable construction, to charge the offense for which the

defendant was convicted.

United States v. Hernandez, 299 F.3d 984, 992 (8th Cir. 2002) (quoting United States

v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993)). An indictment is normally sufficient

if its language tracks the statutory language. Hamling v. United States, 418 U.S. 87,

117 (1974). 

Sewell was charged with violating 18 U.S.C. § 2251(d)(1)(A), which

criminalizes behavior that “knowingly makes . . . or causes to be made . . . any notice

. . . offering . . . to . . . distribute[] or reproduce” child pornography across state lines.

Sewell concedes that his actions in using Kazaa to download and distribute child

pornography across state lines were done knowingly and that he was responsible for

child pornography being in his shared folder. See generally United States v. Shaffer,

472 F.3d 1219 (10th Cir. 2007) (discussing in detail how Kazaa works and holding

that the use of Kazaa to share child pornography is sufficient to uphold a conviction
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for the knowing distribution of child pornography). Sewell argues that the indictment

does not allege that the notice contained an offer to distribute child pornography,

which is an essential element of the offense. 

It is not disputed that the charging language closely tracks the language of §

2251(d)(1)(A), that it fairly informs Sewell of the charge, and that it alleges sufficient

information to allow him to plead a conviction or an acquittal as a bar to subsequent

prosecution. In contradiction to Sewell’s assertion, the government expressly charged

that Sewell used Kazaa to cause a notice to be made, and that “the notice offered to

display, distribute, and reproduce” child pornography in interstate commerce.

Appellee’s App. at A74. The context clearly demonstrates that Sewell was offering

to distribute child pornography. Kazaa’s purpose is to allow users to download each

other’s files, and the purpose of the descriptive fields is to alert interested users to the

content of downloadable files. A keyword search of descriptive fields in Kazaa does

not download the file. The search simply creates a list of downloadable files that

contain the keyword in the file’s descriptive fields. This list then displays the full

descriptive fields for each listed file. Based on the notice the searcher has now been

given regarding what other users are offering, the searcher can then choose to

download the child pornography to his computer. In the context of the Kazaa

program, placing a file in a shared folder with descriptive text is clearly an offer to

distribute the file. To fit this situation within the Tenth Circuit’s apt analogy, see

Shaffer, 472 F.3d at 1223-24, a Kazaa file’s descriptive fields are like a roadside sign

to a self-serve gas station at which the owner need not be present to distribute fuel to

passing motorists. No one would stop at the station without the sign telling them

where the gas station is; the context of such a sign tells motorists that the owner of the

station is offering to distribute fuel to them. Sewell concedes that he distributed child

pornography using Kazaa, and this process depends on adequate notice first being

given to the recipients via the descriptive fields. 
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Sewell’s effort to distinguish Kazaa from Internet chat rooms is unpersuasive,

and users of Internet chat rooms have been convicted under the statute currently

denominated § 2251(d). See, e.g., United States v. Rowe, 414 F.3d 271 (2d Cir.

2005). In chat rooms, the distributor of the child pornography describes the content

that he is willing to share by using words that are viewable by other users of the chat

room, and he posts instructions on how to access the distributor’s server and download

the content. No further communication between the distributor and recipient is

required. Kazaa simply makes this process more efficient: the description of the

offered content is attached to each file and is searchable by using Kazaa, and there is

no need for instructions on server access because Kazaa simplifies the downloading

process to the click of a button. The difference between the two methods is one of

efficiency, not substance; the distributor is making an unambiguous offer in both

situations. 

The order denying the motion to dismiss is affirmed. 

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