Appeal from the United States District Courtfor the Eastern District of CaliforniaWilliam B. Shubb, District Judge, PresidingArgued and SubmittedFebruary 8, 1999--San Francisco, CaliforniaFiled June 29, 1999Before: Phyllis A. Kravitch,* Stephen Reinhardt, andThomas G. Nelson, Circuit Judges.Opinion by Judge Reinhardt;Concurrence by Judge Nelson
______________________COUNSEL Michael Bradley Bigelow, Sacramento, California, for thedefendant-appellant.Miguel Rodriguez, Assistant United States Attorney, Sacra-mento, California, for the plaintiff-appellee.
_____________________________OPINION REINHARDT, Circuit Judge:Daniel Zane Mohrbacher appeals two counts of convictionunder 18 U.S.C. S 2252(a)(1) for transporting visual depic-tions of minors engaged in sexually explicit conduct. He doesnot challenge his other two counts of conviction, one forreceiving visual depictions of minors engaging in sexuallyexplicit conduct under 18 U.S.C. S 2252(a)(2) and the otherfor possession of three or more items containing such depic-tions under S 2252(a)(4)(b). Mohrbacher's illegal conductconsisted of downloading images of child pornography froma foreign-based electronic bulletin board. As to the challengedcounts, he argues that he was charged and convicted under thewrong section of the statute because while he may havereceived these images in violation of S 2252(a)(2) he did nottransport or ship them in violation ofS 2252(a)(1). We agreewith his reading of the statute, and accordingly reverse thesetwo counts of conviction. However, we reject Mohrbacher'ssecond contention on appeal, and hold that the district courtdid not clearly err by denying him credit for acceptance ofresponsibility.I.BACKGROUNDIn March 1992, Danish police seized the business recordsof BAMSE, a computer bulletin board system based in Den-mark that sold child pornography over the Internet. Therecords included information that Mohrbacher, who lived inParadise, California, had downloaded two graphic interfaceformat (GIF) images from BAMSE in January 1992.In March 1993, police executed a search warrant at Mohr-bacher's workplace and found, among other images, two filesthat had been downloaded from BAMSE, one of a nude girland one of a girl engaged in a sex act with an adult; both girlswere under twelve. During the execution of the warrant,Mohrbacher was cooperative, confessing that he had down-loaded the two images from BAMSE, showing police wherethey could find the images that they were looking for on hiscomputer, and providing telephone records that confirmed thedates of his Internet activity. Mohrbacher subsequently coop-erated with the government's investigation of child pornogra-phy. He made monitored telephone calls to a number ofelectronic bulletin boards, provided the name of one bulletinboard operator, and testified at a grand jury hearing. At thathearing, Mohrbacher again admitted that he had downloadedat least one of the two images.In May 1996, Mohrbacher was indicted for one count oftransporting visual depictions of minors engaged in sexuallyexplicit conduct in violation of 18 U.S.C. S 2252(a)(1) andone count of possession of three or more items depicting sex-ually explicit conduct in violation of 18 U.S.C.S 2252(a)(4)(B). Pursuant to a plea agreement, Mohrbacher entered aguilty plea to count two in February 1997. In September 1997,however, with the consent of the government and the districtcourt, this guilty plea was withdrawn because the factual basisthat had been established no longer constituted a crime under18 U.S.C. S 2252(a)(4)(B). See United States v. Lacy, 119F.3d 742, 747 (9th Cir. 1997), cert. denied, 118 S.Ct. 1571(1998) (holding that knowledge of the nature of the materialis an element of the offense of possessing child pornography).At the hearing on Mohrbacher's motion to withdraw his plea,the prosecutor appeared ambivalent about pursuing anotherplea bargain. He first commented that "there would be no pleaoffer on the table from the United States," but when the judgepointed out that further negotiations were not precluded heexpressed his agreement with that observation. Through hisattorney and his own statements to the judge, Mohrbachercommunicated his frustration with the pace of the proceedingsand with the impact that the case was having on his family,1and announced that he was unwilling to continue waivingtime and planned to insist on his right to a speedy trial. Healso claimed that he had not known the nature of the childpornography at the time that he downloaded it.The grand jury then reindicted Mohrbacher under a super-seding indictment for two counts of transporting visual depic-tions of minors engaging in sexually explicit conduct inviolation of 18 U.S.C. S 2252(a)(1), one count of receipt ofvisual depictions of minors engaging in sexually explicit con-duct in violation of 18 U.S.C. S 2252(a)(2), and one count ofpossession of three or more items depicting sexually explicitconduct in violation of 18 U.S.C. S 2252(a)(4)(B). The gov-ernment represents that on a number of subsequent occasionsit approached Mohrbacher in order to negotiate a pleaagreement.2 No plea agreement was reached, and the case pro-ceeded to trial.Mohrbacher's trial began on September 30, 1997. On Octo-ber 3, he made a Rule 29 motion for acquittal on the trans-porting counts, arguing that downloading images constitutedreceiving, rather than transporting or shipping, within thecommon sense meaning of the statute. The district courtdenied the motion, reasoning that downloading from a com-puter bulletin board was analogous to "the seller putting [anitem] on his shelf and the buyer being the person who takesit off the shelf. Here, it was Mr. Mohrbacher who pushed theright buttons that caused the images to be sent from Denmarkto California." The court also stated that Mohrbacher could becriminally liable for causing the images to be transportedunder 18 U.S.C. S 2,3 commenting that "[i]t was Mr. Mohr-bacher who caused the images or visual depiction to be trans-ported in foreign commerce."At the trial, in addition to the witnesses who linked Mohr-bacher directly to the images that were the subject of thecriminal charges, the prosecution presented expert testimonyabout the operation of the bulletin board. The expert witnesstestified that "[a] computer bulletin board system is kind oflike a store of sorts. There's the capability of sending andreceiving files and sending and receiving messages. " Havingstudied BAMSE for two years, he provided the followingdescription of it: BAMSE was a computerized bulletin board system. The bulletin board system is an automated system that runs 24 hours a day, seven days a week. That's a computer system that allows people to connect to it via computer and telephone modem. Once users connect to the BBS, they log in as a user name, they provide a password, and the BBS has a list of images available for download. Individuals would select pic- tures, then download them to their computer. . . . The image files on the BAMSE BBS were GIF files, which stands for graphic interchange files. It's just a binary string of information. It's the computer's way of representing a visual image.The expert described the process of downloading GIF imagefiles, explaining that the bulletin board user selects an imageand uses his own computer modem to download the imagefile through telephone lines. Once downloading has beencompleted, the image is contained in the user's own computersystem. No human conduct is required at the bulletin boardsite in order to facilitate this file transfer. When askedwhether a "store" analogy was appropriate, the expert agreedbut then described one difference: when a customer purchasesan item on the bulletin board, the supply is not depleted --rather, a copy of the original product is generated and sent.On cross-examination, he agreed that defense counsel's anal-ogy to a mail order catalogue was fair, and the followingexchange ensued in which Mohrbacher's attorney attemptedto demonstrate how downloading would compare to calling ina mail order: Q. I would call them on their catalog order num- ber. A. Okay. Q. And I would either be connected with a human being or with, in your world -- A. Computer. Q. -- some computer. So the computer's just a substitute for the human being who initially we used to contact; isn't that right? A. Sure. Q. Just a way of doing business. Instead of the human being responding, the computer responds? A. Sure. A lot of the sites have that with the Inter- net access right now. Q. Sure. So what we're doing as the businessman that runs Penney's, I've substituted my com- puter system, which guys like you developed, for the human being I used to have to pay too much money? A. Okay. Q. Now the BBS is the same program; is it not? Q. Same idea we're going with, yeah. . . . . A. A systems operator is like a storekeeper or shopkeeper. He buys computer hardware, he buys BBS software, and he has his goods that he wants to sell. And he has to customize the BBS software to reflect what merchandise he wants to sell. He needs to create his catalog, if you will. Q. Sure. So if he didn't have all this computer stuff, what he'd have is a room with a bunch of -- like a wall with little compartments in it? A. Sure. Q. And you'd call him up, and he'd walk over, and he'd pull it out of the compartment, and he'd send it to you if you paid him for it? A. Sure. Q. So instead of having the sysop [systems opera- tor] do the shipping, you've got the computer doing the shipping? A. Correct.During the presentation of the prosecution's case, Mohr-bacher's attorney challenged and attempted to impeach someof the witnesses. However, after the government rested,Mohrbacher presented no witnesses, evidence or defense. Hisattorney's closing argument suggested the possibility thatMohrbacher might not have known the nature of the imagesthat he was downloading or that someone else could havebeen responsible for downloading and storing the illegalmaterial. The attorney also argued that downloading an imagecould constitute "receiving" but not "transporting" or"shipping." At the end of the trial, Mohrbacher renewed hisRule 29 motion and the district court again denied it. The juryconvicted Mohrbacher on all counts.Given Mohrbacher's lack of criminal history, the sentenc-ing range for the offense was 37 to 46 months. The govern-ment filed a 5K1.1 motion for downward departure based onsubstantial assistance, and the district court departed even far-ther than the government had recommended. At the sentenc-ing hearing, Mohrbacher continued to maintain that he hadnot known the nature of the images that he was downloadingand that he therefore could not have pled guilty to the chargedoffenses while maintaining his honesty. The district courtrejected Mohrbacher's argument that he was entitled to athree-level adjustment for acceptance of responsibility andsentenced Mohrbacher to nine months for each count of con-viction, sentences to be served concurrently, and three yearsof supervised release.Mohrbacher filed a timely notice of appeal and a motion tobe released on bail pending appeal. In denying the motion forbail, the district court once again commented on the merits ofthe Rule 29 motion, stating that by downloading the images,"[w]hat he basically did was reach onto the bulletin board andget his own information. They didn't have to send it to him.They post it in their bulletin board, and he's the one that doesall of the conduct on his computer which results in his down-loading the information from their bulletin board into hiscomputer."By the time we heard his appeal, Mohrbacher had finishedserving his period of incarceration, but he remains on super-vised release.II.MOTION FOR ACQUITTALThe facts relevant to Mohrbacher's motion for acquittal arenot disputed. We therefore confront directly the legal questionwhether downloading images from a computer bulletin boardconstitutes shipping or transporting within the meaning of theterms as used in 18 U.S.C. S 2252(a)(1), a question of firstimpression. Mohrbacher argues that downloading is properlycharacterized as receiving images by computer, which is pro-scribed by S 2252(a)(2), rather than transporting or shippingimages by computer as prohibited by S 2252(a)(1). If Mohr-bacher is right, then with respect to the two challenged countshe was charged and convicted under the wrong statutory pro-vision, and those convictions must be reversed. See UnitedStates v. Stewart Clinical Laboratory, Inc., 652 F.2d 804, 807(9th Cir. 1981) (reversal of convictions required when defen-dants were charged and convicted under wrong subsection ofstatute).Mohrbacher reasons that downloading is essentially anelectronic request by one computer owner to another com-puter owner to deliver files or data electronically to therequesting owner's computer. He presents a definition ofdownloading in support: "To copy data . . . from a mainsource to a peripheral device. . . . the process of copying a filefrom an online service or bulletin board service (BBS) toone's own computer." PHILIP E. MARGOLIS, RANDOM HOUSEPERSONAL COMPUTER DICTIONARY at 156 (2d ed. 1996). Thisdefinition is in accord with the expert testimony that was pres-ented by the prosecution at trial. As was discussed in greaterdetail earlier in this opinion, that expert testified that down-loading is analogous to placing an order through a mail ordercatalogue except that a computer fills the order automaticallyand the inventory is not depleted because a new copy of theimage is generated.4[1] The question that we must resolve is whether, givenwhat appears to be a noncontroversial definition of the term,Mohrbacher's "downloading" of two images constitutes a vio-lation of S 2252(a)(1). Mohrbacher suggests an analogy forour consideration, an analogy that is consistent with that testi-fied to by the government expert. Mohrbacher argues that hisconduct was comparable to that of a customer who places aphone order requesting delivery of an item, the only differ-ence being that the entity that was filling the order -- the bul-letin board -- had a completely automated response and didnot require any action by an individual at the time the orderwas filled. The government argues that the automated natureof the bulletin board's response makes Mohrbacher the oneresponsible for causing the visual images to move from onelocation to another and that an individual who causes trans-porting or shipping is guilty as a principal. At oral argument,when asked to clarify whether a computer bulletin board ser-vice operator could be liable for transporting or shippingimages under its interpretation of the statute, the governmentanswered in the negative. In the government's view, it is onlythe individual who downloads the image who has caused thatimage to be transported. Mohrbacher responds by pointing outthat a request will not be filled unless the operator of the bul-letin board has configured it to accept orders. Thus, he argues,it is the bulletin board operator who has transported orshipped the images, and the downloader has only receivedthem. The disagreement is in essence over whether the gov-ernment is correct that the automated nature of the processrequires the conclusion that downloading is equivalent totransporting.[2] "In interpreting a statute, we look first to the plain lan-guage of the statute, construing the provisions of the entirelaw, including its object and policy, to ascertain the intent ofCongress." Northwest Forest Resource Council v. Glickman,82 F.3d 825, 830 (9th Cir. 1996) (internal quotation marksand citation omitted). The statute at issue does not define theterms "transport," "ship" or "receive." See 18 U.S.C. S 2256(1999). "Where a statutory term is not defined in the statute,it is appropriate to accord the term its `ordinary meaning.' "Northwest Forest Resource Council, 82 F.3d at 833 (internalquotation marks and citation omitted). When there is no indi-cation that Congress intended a specific legal meaning for theterm, the court may look to sources such as dictionaries for adefinition. See Muscarello v. United States,
524 U.S. 125
, 118S.Ct. 1911, 1914-16 (1998) (relying upon dictionaries, litera-ture, and newspaper reports, in addition to legislative history,to ascertain the meaning of the word "carry").[3] The first definition of "receive" in the Oxford EnglishDictionary is "[t]o take into one's hand, or into one's posses-sion (something held out or offered by another); to take deliv-ery of (a thing) from another, either for oneself or for a thirdparty." OXFORD'S ENGLISH DICTIONARY 2D 314 (1989).5 Anindividual who downloads material takes possession oraccepts delivery of the visual image; he has therefore cer-tainly received it. In fact, guides to computer terminologyoften analogize downloading to receiving information anduploading to transmitting or sending. "To transmit a file fromone computer to another. When conducting the session, down-load means receive, upload means transmit." ALAN FREEDMAN,COMPUTER WORDS YOU GOTTA KNOW! ESSENTIAL DEFINITIONSFOR SURVIVAL IN A HIGH-TECH WORLD 49 (1993). "To down-load means to receive information, typically a file, fromanother computer to yours via your modem . . . . The oppositeterm is upload, which means to send a file to anothercomputer." ROBIN WILLIAMS, JARGON, AN INFORMAL DICTIONARYOF COMPUTER TERMS 170-71 (1993). Even the prosecution'sexpert, when asked what happens when an individual down-loads an image, responded, "When you download the pic-tures, you receive an exact copy of the picture that existed inDenmark." See also Peter Wayner, Plugging In to the Inter-net: Many Paths, Many Speeds, N.Y. TIMES (Jan. 30, 1999)("You might be able to download, or receive, large volumesof data quickly, but the time to upload, or send, informationcould be much slower.").[4] However, it is also possible, employing dictionary defi-nitions, to construe the terms "transport" and "ship" in a man-ner that encompasses a downloader's acts. "Transport" isdefined as "to carry, convey, or remove from one place orperson to another; to convey across." OXFORD 'S ENGLISHDICTIONARY 2D, supra, at 423.6 Shipping is usually defined asone manner of transporting. See WEBSTER'S THIRD, supra, at2096 ("to cause to be transported" or "to move (something)from one place or position to another").7 An individual whodownloads an image to his own computer has indisputablyreceived that image; however, he has also arguably movedthat image from one place to another -- from the bulletinboard to his own computer.8 Of course, the downloader isonly able to accomplish this task because another person haspreconfigured the bulletin board to accept his order.9 Giventhe role that another individual plays in uploading the imagesand configuring the bulletin board to send them upon request,and the fact that the process of downloading would seem tocorrespond much more closely with the term "receiving" thanwith "transporting" or "shipping," the dictionary definitionsare not dispositive of the issue before us.[5] We next look to other principles of statutory interpreta-tion. In determining the meaning of a statutory provision, acourt may consider the purpose of the statute "in its entirety,"see Alarcon v. Keller Industries, Inc., 27 F.3d 386, 389 (9thCir. 1994), and whether the proposed interpretation wouldfrustrate or advance that purpose. See Tierney v. Kupers, 128F.3d 1310, 1311-12 ((9th Cir. 1997). In this case, the statutorypurpose provides no guidance as to which of its sectionsaddresses the act of downloading child pornography. InUnited States v. Black, 116 F.3d 198 (7th Cir.), cert. denied,118 S.Ct. 341 (1997), the Seventh Circuit described the stat-ute's purpose, as follows: "broad legislative enactment wasnecessary to prevent child abuse." 116 F.3d at 202. The statu-tory provisions therefore must be interpreted in accord withthe statute's broad and general purpose of facilitating theprosecution of individuals who are involved with childpornography.10 However, the decision whether downloading isproperly charged under (a)(1) or (a)(2) of the statute, or both,will neither hinder nor facilitate such prosecutions. Becausethe penalties and sentencing guidelines ranges for both provi-sions are identical, this court's decision will determine howdownloading should be prosecuted but not affect the difficultyor nature of such prosecutions. Whichever statutory provi-sions may be deemed applicable, the statutory purpose will beequally served.[6] For further interpretive guidance, a court may examinethe particular statutory language to be construed in relation tothe other parts of the statute. See United States v. DeLaCorte,113 F.3d 154, 156 (9th Cir. 1997). Here, an examination ofthe structure of S 2252 tends to support Mohrbacher's posi-tion. The fact that Congress chose to separate the provisionthat makes transporting or shipping unlawful from the subsec-tion that criminalizes receiving or distributing suggests thatthe provisions are meant to regulate different types of behav-ior. "[A] statute must be interpreted to give significance to allof its parts. . . . We have long followed the principle that stat-utes should not be construed to make surplusage of anyprovision." Northwest Forest Resource Council , 82 F.3d at833-34 (internal citation, quotation marks, and bracket omit-ted).[7] On the basis of our analysis of the nature of the processof downloading, the dictionary definitions of the termsincluded in the statute, the statute's purpose, and the structureof the statutory provisions, we conclude that Mohrbacher'sinterpretation of the statute is correct. An individual whodownloads images from a computer bulletin board takes anaction that is more analogous to ordering materials over thephone and receiving materials through the mail than to send-ing or shipping such materials. Those who are responsible forproviding the images to a customer, by making them availableon a computer bulletin board or by sending them via elec-tronic mail, are properly charged with and convicted of ship-ping or transporting images under S 2252(a)(1). A customerwho is simply on the receiving end -- who downloads animage that has been made available through an automated,preconfigured process or that has been sent by another com-puter user -- is guilty of receiving or possessing such materi-als under S 2252(a)(2) but not of shipping or transportingthem.We reject the argument that even if downloading itself ismore analogous to receiving, Mohrbacher, by ordering thepornographic images, caused them to be transported and istherefore nonetheless criminally liable under S 2252(a)(1).Acceptance of this reasoning would allow any act of ordering,requesting, or indicating an interest in contraband to providea basis for conviction of transporting or shipping such mate-rial, and would eliminate the distinction between purchasersand sellers or shippers and receivers. Because a request fordrugs could be viewed as causing a drug sale to occur, anypurchaser or receiver could be charged as a buyer or distribu-tor at the prosecutor's discretion. For the reasons explainedabove, the distinctions between downloading an image andordering an item from a human supplier -- i.e., the facts thatthe response is automatic (because an individual has pro-grammed it to be so) and that filling the order does not depletethe supply -- provide no logical reason to limit the principlethat would be established: any customer who requests ororders a product could be held liable for causing that productto be sent or sold.[8] The government's reliance upon 18 U.S.C. S 2(b) doesnot change our analysis. That provision does not eliminate thedistinction between buyers and sellers, or between shippersand receivers. It serves a different purpose: it insures that anoffender who utilizes an innocent agent to carry out a criminalact but may not be charged as a principal underS 2(a), theaiding and abetting provision, is not insulated from criminalliability. See United States v. Causey, 835 F.2d 1289, 1292(9th Cir. 1987) (purpose of S 2(b) is to allow offenders whouse innocent agents to perform illegal acts to be punished asprincipals). While the government relies upon United Statesv. Thomas, 893 F.2d 1066 (9th Cir. 1990), and United Statesv. Michaels, 796 F.2d 1112, 1117-18 (9th Cir. 1986), thosecases both involve defendants who induced innocent partiesto mail contraband on their behalf. They stand for the princi-ple that a defendant may be convicted as a principal even ifhe uses another person as the agent to commit the crime. Sucha concept is entirely different from the theory urged by thegovernment in this case, which is essentially that, when a cus-tomer orders illegal materials from a producer or supplier, theordering party has caused the supplying party's illegal act offilling the order. The government's interpretation of 18 U.S.C.S 2(b) would vest unconstrained discretion in prosecutors todecide how to charge a large number of crimes that involveactions by individuals who commit different offenses, andmight unwittingly render many provisions of criminal statutessuperfluous or duplicative.A review of the published cases involving shipping ortransporting child pornography via computer reveals thatprosecutions are conducted in the manner that we have con-cluded is required by the statute: in each case, individualsconvicted under S 2252(a)(1) had either sent the material elec-tronically to another computer user or had made the materialavailable to others through an electronic bulletin board ornews group. See United States v. Hibbler, 159 F.3d 233, 235-36 (6th Cir. 1998), cert. denied, 119 S.Ct. 1278 (1999) (defen-dant convicted of violating S 2252(a)(1) had traded child por-nography); United States v. Miller, 146 F.3d 1281, 1283 (11thCir. 1998), cert. denied, 119 S.Ct. 915 (1999) (defendant whopled guilty to violation of S 2252(a)(1) had traded someimages, transmitting them by computer); United States v.Coenen, 135 F.3d 938, 945 (5th Cir. 1998) (defendant whopled guilty to four counts of violating S 2252(a)(1) had bothdownloaded images from and uploaded images to Internetnews groups); United States v. Delmarle, 99 F.3d 80, 82 (2dCir. 1996), cert. denied,
519 U.S. 1156
(1997) (defendantwho pled guilty to violating S 2252(a)(1) admitted sendingimages to others via electronic mail); United States v.Thomas, 74 F.3d 701, 705-06 (6th Cir. 1996) (individual con-victed under S 2252(a)(1) and other statutory provisions ranbulletin board operation); United States v. Chapman, 60 F.3d894, 895 (1st Cir. 1995) (defendant who pled guilty to violat-ing S 2252(a)(1) had sent images to others through computernetwork); United States v. Lamb, 945 F. Supp. 441, 445-46(N.D.N.Y. 1996) (individual charged with violatingS 2252(a)(1) had transmitted and received images). In theonly case in which an individual who may have done nothingmore than download images was charged with violatingS 2252(a)(1), the defendant ultimately pled guilty only to aviolation of S 2252(a)(4), which makes possession unlawful.See United States v. McBroom, 124 F.3d 533, 534 (3d Cir.1997). With that one possible exception, individuals whosesole criminal behavior has been to download pornographicimages have been charged not under S 2252(a)(1) but underS 2252(a)(2) or S 2252(a)(4) (receipt or possession of childpornography). See United States v. Muick, 167 F.3d 1162,1164 (7th Cir. 1999) (defendant convicted of violation ofS 2252(a)(2) and S 2252(a)(4) for downloading child pornog-raphy); United States v. Simpson, 152 F.3d 1241, 1244-45(10th Cir. 1998) (defendant convicted under S 2252(a)(2) haddownloaded images); United States v. Black, 116 F.3d 198,199-200 (7th Cir.), cert. denied, 118 S.Ct. 341 (1997) (indi-vidual who distributed and received files charged underS 2252(a)(2) and other statutory provision); United States v.Kimbrough, 69 F.3d 723, 726-27 (5th Cir. 1995) (individualwho had downloaded images convicted under S 2252(a)(2));United States v. Petersen, 25 F.Supp.2d 1021, 1022-23 (D.Neb. 1998) (individual who pled guilty to violation ofS 2252(a)(2) had downloaded child pornography). Thus, ourinterpretation of the differing provisions of S 2252(a) wouldappear to be in accord with the uniform practices followed byall other federal prosecutors.[9] For the above reasons, the district court's denial ofMohrbacher's motion for acquittal on counts one and two wasin error, and we reverse as to those counts.III.ACCEPTANCE OF RESPONSIBILITYBecause two of Mohrbacher's counts of conviction are notchallenged and will remain in effect, we also considerwhether the district court's denial of a downward adjustmentfor acceptance of responsibility constituted an abuse of discre-tion. Mohrbacher argues both that the district court improp-erly punished him for exercising his right to trial and that thecourt insufficiently explained the grounds upon which itrelied. In support of his argument that he was entitled to anacceptance of responsibility adjustment, Mohrbacher cites hisimmediate and extensive cooperation with government inves-tigative efforts, his willingness to enter a plea agreement, hisfailure to present any defense or contest any facts at trial, andhis contention that he only refused the offered plea agree-ments because he could not admit to an untrue factual allega-tion.[10] It is clear that a judge cannot rely upon the fact thata defendant refuses to plead guilty and insists on his right totrial as the basis for denying an acceptance of responsibilityadjustment. See United States v. Vance, 62 F.3d 1152, 1157-58 (9th Cir. 1995). Even a defendant who contests his factualguilt at trial may, under some circumstances, be entitled tosuch an adjustment. See United States v. Ing, 70 F.3d 553, 556(9th Cir. 1995) (entrapment defense is not inconsistent withdownward adjustment for acceptance of responsibility);United States v. McKinney, 15 F.3d 849, 852-53 (9th Cir.1994) (defendant who had assisted authorities immediatelyupon his arrest, attempted to plead guilty, and declined to callany witnesses or raise an affirmative defense was entitled toacceptance of responsibility credit despite contesting factualguilt at trial through cross-examination of prosecution wit-nesses). In the instant case, a number of factors were presentthat would have supported an acceptance of responsibilityadjustment. Mohrbacher admitted his acts immediately uponhis arrest and cooperated with the government to discoverothers' criminal activity; he initially pled guilty; and, at trial,he called no witnesses and presented no evidence, relyinginstead on minimal cross-examination of government wit-nesses. See U.S.S.G. S 3E1.1 Application Notes 1(a) (truthfuladmission of conduct that constitutes offense weighs in favorof acceptance of responsibility); 1(e) (assistance to authori-ties); 1(h) (timeliness of acceptance of responsibility).[11] The district court, however, denied an acceptance ofresponsibility adjustment to Mohrbacher because he refusedto admit to the intent element of the offense. While Mohr-bacher did not testify at trial, at his sentencing hearing hemade numerous statements denying that he had realized thathe was downloading images of child pornography, statementsthat manifested a continuing denial of the requisite criminalintent. Such a refusal to admit one's guilt of the elements ofan offense permits a district court to exercise its discretion todeny an acceptance of responsibility adjustment. See UnitedStates v. Burrows, 36 F.3d 875, 883 (9th Cir. 1994) (uphold-ing denial of acceptance of responsibility when defendant"maintained even after trial that he had a complete defensebased on his purported lack of mens rea"); United States v.Lindholm, 24 F.3d 1078, 1087 (9th Cir. 1994) (denial ofacceptance of responsibility was proper when defendant con-tinued to believe that he was innocent and to deny fraudulentintent, a central issue). Thus, the district court did not err inthat respect.[12] Next, as long as we can determine that the districtcourt considered the defendant's objections and did not restits decision on impermissible factors, no specific explanationof reasons is required for denying a defendant a downwardadjustment for acceptance of responsibility. See United Statesv. Marquardt, 949 F.2d 283, 285-86 (9th Cir. 1991). Whilethe district judge did express some frustration at Mohr-bacher's unwillingness to plead guilty, he specifically statedthat he was not punishing Mohrbacher for his decision to goto trial, but was instead basing his denial of the downwardadjustment on the nature of the defense that Mohrbacherraised at trial and was continuing to assert at sentencing.Thus, the district court did not fail to explain its reasons ade-quately.In sum, the district court did not abuse its discretion indenying Mohrbacher an adjustment for acceptance of respon-sibility.IV.CONCLUSIONWe therefore REVERSE Mohrbacher's conviction oncounts one and two but AFFIRM the district court's denial ofan adjustment for acceptance of responsibility.REVERSED in part, AFFIRMED in part, and RE-MANDED for further proceedings consistent with this opin-ion.
_____________________________NELSON, Circuit Judge, specially concurring:The Government charged Mohrbacher under 18 U.S.C.S 2252(a)(1), which governs transporting or shipping sexuallyexplicit materials rather than S 2252(a)(2), relating to receiv-ing or distributing those materials. The argument is nowmade, as it was in the district court, that downloading of theimages constituted "transporting" the illicit materials.While it is possible to make a strained argument to thateffect, and it would be possible to write an equally strainedopinion affirming on the basis of the aiding and abetting pro-visions of 18 U.S.C. S 2, I see no reason to encourage theGovernment to prosecute people under the wrong statute. Thisis particularly true when, as here, there is a perfectly clearstatutory provision which applies to the defendant's conductwithout the necessity of any interpretation. Therefore, I fullyconcur in our decision. the end
___________________________FOOTNOTES 1 Mohrbacher's wife had recently died, and Mohrbacher told the courtthat he felt that his involvement in this criminal case had caused her deathfrom a botched intubation procedure. Mohrbacher, a paramedic, wouldhave been able to perform the procedure had he not been away from home,at a court appearance. Furthermore, during the week before the change ofplea hearing, Mohrbacher's daughter had attempted suicide.2 In support of its contention, the government has presented two lettersthat were sent to Mohrbacher which set forth its understanding that he wasnot interested in negotiating and offered to engage in further discussionsin the event that it was mistaken about his position.3 18 U.S.C. S 2(b) provides:"whoever willfully causes an act to be donewhich if directly performed by him or another would be an offense againstthe United States, is punishable as a principal."4 Other sources describe the act in similar terms. See BOB COTTON &RICHARD OLIVER, THE CYBERSPACE LEXICON 66 (1994) ("Originally used todescribe the movement of information from a large computer to a smallerone. Now used to describe the process of transferring data from one com-puter system to another, or from a network or bulletin board to a personalcomputer, or from a computer to an archiving storage device");INTERNATIONAL BUSINESSMACHINES CORP., IBM DICTIONARY OF COMPUTING217 (1994) ("To transfer programs or data from a computer to a connecteddevice, typically a personal computer . . . To transfer data from a computerto a connected device, such as a workstation or microcomputer."); DAVIDMORSE, CYBER DICTIONARY (1996) ("To copy a file from a host system(such as America Online or CompuServe) onto your computer, via tele-phone lines and a modem.").5 See also WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 1894 (1986) ("to take back, take, accept, receive . . . to takepossession or delivery of . . . to knowingly accept . . . to take in: act asa receptacle or container for . . . to come into possession of: acquire");BLACK'S LAW DICTIONARY 1268 (6th ed.1990) ("To take into possessionand control; accept custody of; collect.").6 See also WEBSTER'S THIRD, supra, at 2430 ("to transfer or convey fromone person or place to another: carry, move"); BLACK'S LAWDICTIONARY,supra, at 1499 ("To carry or convey from one place to another.").7 See also OXFORDENGLISH DICTIONARY 2D, supra, at 276 ("To send ortransport by ship . . . . to export . . . To transport (goods) by fail or othermeans of conveyance"); BLACK'S LAW DICTIONARY, supra, at 1377 ("totransport; to deliver to a carrier (public or private) for transportation. Tosend away, to get rid of. To send by established mode of transportation,as to `carry,' `convey,' or `transport,' which are synonymous and defined,respectively, as `to bear or cause to be borne as from one place to another,'and `to carry or convey from one place to another.' ").8 The statute does not appear to require that the defendant ship or trans-port the image to a third person. See United States v. Kemmish, 120 F.3d937, 938 (9th Cir. 1997), cert. denied, 118 S.Ct. 1087 (1998) (affirmingdefendant's conviction under S 2252(a)(1) after arrest for attempt to smug-gle child pornography videotapes into United States).9 The action of the bulletin board operator, on the other hand, cannot beproperly characterized as receiving images but only as transporting orshipping -- unless the operator's conduct does not violate any provisionof the statute, as the government rather oddly suggested at oral argument.While of course more than one individual could be held responsible fortransporting a given image, it is more difficult to claim that Mohrbacherhimself caused the images to be transported when one considers that thebulletin board operator is in reality the individual who is primarily respon-sible for the images moving from the bulletin board to individuals' com-puters.10 An examination of the legislative history of the statute does not pro-vide any additional information. Congressional reports regarding theenactment of S 2252 and subsequent amendments have also defined thestatutory purposes broadly and in general terms.See , e.g., S. REP. NO. 95-948 *1 (1977); H. REP. NO. 98-292 (1983); CONF. REP. NO. 104-863 * 70-72 (1996).