Filed: Jul. 11, 2012
Latest Update: Mar. 26, 2017
Summary: files with titles suggestive of child pornography.matters containing any image.running EP2P).defendant's laptop to Agent Cecchini's computer. The district court denied this motion.included offense instruction on the distribution count.United States v. Lewis, 554 F.3d 208, 215 (1st Cir.
United States Court of Appeals
For the First Circuit
No. 11-1290
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID CHIARADIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Thompson, Circuit Judges.
Robert B. Mann, with whom Mann and Mitchell was on brief, for
appellant.
John M. Pellettieri, Attorney, U.S. Department of Justice,
Criminal Division, Appellate Section, with whom Lanny A. Breuer,
Assistant Attorney General, John D. Buretta, Acting Deputy
Assistant Attorney General, Andrew McCormack, Attorney, Criminal
Division, Child Exploitation & Obscenity Section, Peter F. Neronha,
United States Attorney, and Terrence P. Donnelly, Assistant U.S.
Attorney, were on brief, for appellee.
July 11, 2012
SELYA, Circuit Judge. This appeal presents a montage of
issues arising at a crossroads where traditional criminal law
principles intersect with the marvels of modern technology. The
appeal follows on the heels of a jury verdict finding defendant-
appellant David Chiaradio guilty of possessing and distributing
child pornography. The defendant challenges divers aspects of the
indictment, trial, verdict, and sentence. After careful
consideration of the well-marshaled arguments on both sides, we
affirm in part and remand for further proceedings.
I. BACKGROUND
At trial, the government's case relied in large part on
testimony from agents of the Federal Bureau of Investigation (FBI).
One agent, Joseph Cecchini, testified that on February 28, 2006, he
went online in an undercover capacity to search for child
pornography. Agent Cecchini's investigation involved software
known as LimeWire — a commercially available peer-to-peer file-
sharing program that enables users to transmit files to and from
other members of the LimeWire network. Users can search for files
made available by other users, browse all the files made available
by a particular user, and download desired files. They also may
make their own files accessible for download by designating a
folder on their computers that will automatically share its
contents with the network.
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Agent Cecchini employed a special version of LimeWire
developed by the FBI, known as "enhanced peer-to-peer software"
(EP2P), which was customized to assist child pornography
investigations. It differs from the commercially available
LimeWire program in three principal respects.
First, when a user of the commercially available version
of LimeWire tries to download a file, the program seeks out all the
users who are sharing the same file and downloads different pieces
of that file from multiple locations in order to optimize download
speed. EP2P eliminates that functionality; it allows downloading
from only one source at a time, thus ensuring that the entire file
is available on that source's computer. Second, in its
commercially available iteration, LimeWire responds to a search
term by displaying basic information such as the names of the
available files, file types, and the file sharers' Internet
Protocol (IP) addresses. EP2P displays not only that data but also
the identity of the Internet Service Provider (ISP) and the city
and state associated with the IP address sharing a particular file.
Third, EP2P has been modified so that an agent can easily compare
the hash value (essentially, the digital fingerprint) of an
available file with the hash values of confirmed videos and images
of child pornography. Taken together, these three modifications
permit agents to download a file from a single source, learn the
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general location of the source, and facilitate the identification
of child pornography as such.
Agent Cecchini testified that on February 28, 2006, he
used EP2P to search for "pedo collection," a term that he knew to
be fancied by collectors of child pornography. His search turned
up a number of files, including one being shared from an IP address
in Rhode Island. He then used LimeWire's browse function to peruse
the other files being shared from that IP address and found 643
files with titles suggestive of child pornography. The agent
downloaded three such files and confirmed that they contained
graphic depictions of young girls.
After serving a subpoena on the ISP, Agent Cecchini
traced the IP address to a residence in Westerly, Rhode Island,
owned by the defendant's father. With this information in hand,
another agent, Andrew Yesnowski, obtained a search warrant.
On August 22, 2006, a search party that included Agent
Yesnowski and Agent Michael Kohn executed the warrant at the
Westerly dwelling. The agents seized a laptop computer from the
defendant's bedroom and a desktop computer from a spare bedroom.
The defendant took responsibility for both computers and agreed to
speak with agents about his computer usage. He explained that the
house had a shared wireless network connecting both computers to
the Internet, as well as its own internal file-sharing system
enabling a user of one computer to access data and files on the
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other computer. In response to agents' questions, the defendant
admitted to installing and using LimeWire on the laptop to download
music but denied that he had ever searched for, or downloaded,
child pornography.
Forensic analysis revealed over 5,000 images and videos
of child pornography on the desktop and nearly 2,000 on the laptop.
There was some overlap between these inventories of child
pornography, but the record remains tenebrous as to the details.
On May 20, 2009, a federal grand jury handed up an
indictment charging the defendant with two counts of possessing
child pornography, 18 U.S.C. § 2252(a)(4)(B), and one count of
distributing it, id. § 2252(a)(2). After considerable pretrial
skirmishing and three days of trial, a jury found the defendant
guilty across the board. The district court denied the defendant's
post-trial motions for judgment of acquittal and for a new trial.
Sentencing followed.
With respect to the distribution count, the district
court used a base offense level of 22, see USSG §2G2.2(a)(2), and
then added 15 levels premised on various specific adjustments.
Through grouping, this total offense level (37) applied to all of
the counts of conviction. See id. §§3D1.1, 3D1.2(c), 3D1.3(a).
Paired with the defendant's criminal history category (I), this
total offense level yielded a guideline sentencing range of 210-262
months.
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Varying downward, the district court imposed concurrent
97-month incarcerative terms on each count of conviction. The
court also imposed a life term of supervised release and a $100
special assessment on each count, see 18 U.S.C. § 3013(a)(2)(A).
The court did not impose a fine, but it ordered the defendant to
pay $10,000 to each of two victims who requested restitution. See
id. § 2259. This timely appeal followed.
II. ANALYSIS
We address the defendant's claims of error sequentially.
A. Multiplicity.
As an initial matter, the defendant challenges the
government's decision to charge him with two counts of possessing
child pornography under 18 U.S.C. § 2252(a)(4)(B). These counts,
he maintains, are multiplicitous; and because he has been convicted
and sentenced on each count, he has been twice punished for a
single crime. See U.S. Const. amend. V; Illinois v. Vitale, 447
U.S. 410, 415 (1980).
The prohibition against multiplicitous prosecutions
derives from "the Double Jeopardy Clause, which 'protects against
multiple punishments for the same offense.'" United States v.
Pires, 642 F.3d 1, 15 (1st Cir. 2011) (quoting Vitale, 447 U.S. at
415). A prosecution is multiplicitous when the government charges
a defendant twice for what is essentially a single crime; for
example, when a felon has violated 18 U.S.C. § 922(g) by possessing
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a firearm, it would be multiplicitous to charge the felon with two
counts simply because he had it yesterday and today. See United
States v. Destefano, No. 98-2054, 1999 WL 1319192, at *1 (1st Cir.
Nov. 22, 1999) (per curiam). Determining whether an indictment is
multiplicitous requires an inquiring court to examine whether a
particular course of illegal conduct constitutes one or multiple
offenses. See Pires, 642 F.3d at 15. Congress's intent is
paramount on this point: the legislature may castigate a particular
act by exposing the actor to several prosecutions and punishments,
or it may specify that the act should only be subject to a single
unit of prosecution. See id.; see also United States v. LeMoure,
474 F.3d 37, 43 (1st Cir. 2007) (observing that "[m]ultiple
punishments for the same offense . . . are permissible if the
legislature so intended").
In the case at hand, the statute of conviction prohibits
"knowingly possess[ing] . . . one or more books, magazines,
periodicals, films, video tapes, or other matter which contain any
visual depiction" that has traveled in, or was produced by
materials which traveled in, interstate commerce if "(i) the
producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and (ii) such visual
depiction is of such conduct."1 18 U.S.C. § 2252(a)(4)(B). Here,
1
For ease in exposition, we follow traditional grammar rules
and spell out single-digit numbers (even where Arabic numerals have
been used in the statutory text).
-7-
the government seized a plethora of forbidden files during a single
search of a single dwelling, yet charged the defendant with two
counts of unlawful possession. The government defends its use of
dual counts of possession on the ground that the proper unit of
prosecution is each matter or physical medium on which images are
stored. As the government would have it, the defendant's
utilization of two computers (the laptop and the desktop) exposed
him to prosecution for two separate crimes. This is especially
fitting, the government suggests, because the computers were
located in different rooms and had different functions: the laptop
was used for acquiring the pornographic images, whereas the desktop
was used for storing them.
The defendant counters that section 2252(a)(4)(B), fairly
read, criminalizes the possession of "one or more" computers
containing offending images. It follows, the defendant says, that
the government may charge only a single crime regardless of whether
a defendant possesses two or 2,000 images on one or 100 computers,
at least when that possession is simultaneous and under one roof.
In other words, the number of "matters" (here, the number of
computers) does not in itself define the proper unit of
prosecution. Dividing the crime of possession into two separate
crimes was especially egregious in this case, the defendant
suggests, because the two computers were linked (that is, they
shared an internal network through which files could freely move
-8-
back and forth) and their contents overlapped (albeit to an
unspecified degree).
The defendant properly preserved this issue for review,
raising it by both a motion to dismiss and a motion for judgment of
acquittal. Consequently, his claim of multiplicity engenders de
novo review. See United States v. Gerhard, 615 F.3d 7, 18 (1st
Cir. 2010). Our task is straightforward; when, as in this case, "a
claim of multiplicity is premised on an indictment alleging several
violations of a single statutory provision, an inquiring court must
determine whether there is a sufficient factual basis to treat each
count as separate." United States v. Stefanidakis, ___ F.3d ___,
___ (1st Cir. 2012) [No. 11-1182, slip op. at 9]. In making this
judgment, we look to the statute of conviction to ascertain
"whether Congress intended to punish each statutory violation
separately." Pires, 642 F.3d at 15 (quoting Jeffers v. United
States,
432 U.S. 137, 155 (1977)) (internal quotation marks
omitted). The key question in this case, then, is what the
legislature intended the proper unit of prosecution to be when it
criminalized the possession of "one or more" matters containing
illicit depictions.
When Congress added what is now section 2252(a)(4)(B) to
the statute criminalizing the transportation, receipt, and
distribution of child pornography, it outlawed the possession of
"three or more books, magazines, periodicals, films, video tapes,
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or other matter which contain any visual depiction" of minors
engaging in sexually explicit conduct. Child Protection
Restoration and Penalties Enhancement Act of 1990, Pub. L. No. 101-
647, § 323, 104 Stat. 4789, 4818 (current version at 18 U.S.C.
§ 2252(a)(4)(B)). No other section of the statute contained such
a numerical limitation. From their inception, the transportation-
related offenses described in section 2252(a)(1), the receipt and
distribution offenses described in section 2252(a)(2), and the
sale-related offenses described in section 2252(a)(3) all
criminalized offending acts with respect to "any" sexually explicit
depiction of a minor. See id. (current version at 18 U.S.C.
§ 2252(a)(3)); Protection of Children Against Sexual Exploitation
Act of 1977, Pub. L. No. 95-225, § 2, 92 Stat. 7, 7-8 (current
version at 18 U.S.C. § 2252(a)(1)-(2)).
In 1998, Congress changed the numerical element of
section 2252(a)(4)(B) to make unlawful the possession of "one or
more books, magazines, periodicals, films, video tapes, or other
matter which contain any visual depiction." See 18 U.S.C.
§ 2252(a)(4)(B) (emphasis supplied); Protection of Children from
Sexual Predators Act of 1998, Pub. L. No. 105-314, § 203, 112 Stat.
2974, 2978. The very title of the amending legislation — "'Zero
Tolerance' for Possession of Child Pornography" — makes manifest a
legislative intent to punish the possession of even a single
illicit image. But the legislative history contains no indication
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that Congress intended to permit multiple prosecutions when it used
the term "one or more" in section 2252(a)(4)(B), nor is there any
inkling that Congress intended to allow prosecutors to divide
simultaneous possession by a single individual of several matters
containing child pornography into multiple units of prosecution,
see Bell v. United States, 349 U.S. 81, 83 (1955) (observing that
"[w]hen Congress has the will . . . of defining what it desires to
make the unit of prosecution," it has no difficulty expressing it).
We think that this is significant because, as we explain below,
courts previously had treated such violations of section
2252(a)(4)(B) as comprising a single offense.
Before the 1998 amendment, the Fifth Circuit considered
whether an indictment could charge a defendant who possessed
numerous forbidden images with multiple offenses under section
2252(a)(4)(B). The court concluded that "the plain language of the
statute's requirement that a defendant possess 'three or more'
items indicates that the legislature did not intend for this
statute to be used to charge multiple offenses" in such a
situation. United States v. Kimbrough, 69 F.3d 723, 730 (5th Cir.
1995). We do not see why changing the number from "three" to "one"
undermines this trenchant assessment in any way.2 Accordingly, we
2
In endorsing this reasoning, we join the Second Circuit in
rejecting the view of those district courts that have suggested
that the statutory changes evince Congress's intent to change the
unit of prosecution. See United States v. Polouizzi, 564 F.3d 142,
156 (2d Cir. 2009) (rejecting logic of United States v. Hamilton,
-11-
hold that the plain language of section 2252(a)(4)(B) memorializes
Congress's intent, at least in circumstances similar to the
circumstances of this case, that one who simultaneously possesses
a multitude of forbidden images at a single time and in a single
place will have committed only a single offense. In this instance,
the defendant may have possessed two "matters" (i.e., two
computers) that collectively contained thousands of images, but his
simultaneous possession of "one or more" matters transgressed the
statute only once.
In so holding, we do not write on a pristine page. The
Second Circuit answered a similar question in United States v.
Polouizzi, 564 F.3d 142, 153-57 (2d Cir. 2009). The court found
that the defendant had been impermissibly charged with eleven
counts of possession when he possessed eleven files on three hard
drives in two separate rooms. Id. at 155 n.5. It examined section
2252(a)(4)(B) and relevant case law and concluded, as do we, that
"Congress intended to subject a person who simultaneously possesses
multiple books, magazines, periodicals, films, video tapes, or
other matter containing a visual depiction of child pornography to
only one conviction." Id. at 155.
The government labors to distinguish Polouizzi on the
ground that, unlike in that case, see id. at 155 n.5, it has
Civil No. 07-50054, 2007 WL 2903018, at *2-3 (W.D. Ark. Oct. 1,
2007), and United States v. Flyer, No. CR 05-1049,
2006 WL 2590459,
at *4-6 (D. Ariz. Sept. 7, 2006)).
-12-
consistently argued the significance of dual computers in separate
rooms. We find this supposed distinction unconvincing. The
computers, while in separate rooms, were in the same house and were
programmed so that files could move freely between them. If a
defendant had multiple photo albums of images in his bedroom and
living room and periodically swapped images between them, two
convictions — one for each album — would not stand. This case, it
seems to us, is the electronic equivalent of that situation.
The government's reliance on case law approving the
charging of multiple possession counts under section
2252A(a)(5)(B), see, e.g., United States v. Hinkeldey, 626 F.3d
1010, 1014 (8th Cir. 2010); United States v. Planck,
493 F.3d 501,
503-05 (5th Cir. 2007), is equally misplaced. Section 2252A,
enacted after section 2252, criminalizes trafficking in and
possessing all "child pornography," a term broad enough to include
otherwise unobjectionable images of children that have been
manipulated to appear pornographic. See 18 U.S.C. §§ 2252A(a),
2256(8); Child Pornography Prevention Act of 1996 § 1(13), Pub. L.
No. 104-208, § 121, 110 Stat. 3009, 3009-027. With respect to
possession offenses, section 2252A(a)(5)(B) prohibits knowingly
possessing "any book, magazine, periodical, film, videotape,
computer disk, or any other material that contains an image of
child pornography." 18 U.S.C. § 2252A(a)(5)(B) (emphasis
supplied). The use of the word "any" contrasts sharply with
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section 2252(a)(4)(B), which criminalizes possessing "one or more"
matters containing any image. Id. § 2252(a)(4)(B) (emphasis
supplied).
The possession provisions of section 2252A and section
2252 are, thus, materially different. This difference — between
"any" and "one or more" — is of decretory significance. The phrase
"one or more," unlike the word "any," strongly suggests Congress's
intent that multiple matters be included in a single unit of
prosecution.3 See Hinkeldey, 626 F.3d at 1014; see also Kimbrough,
69 F.3d at 730 & n.6 (explaining that the difference between "any"
and "three or more" is what "distinguishes the offense of
possession of child pornography from the offenses of transporting
and receiving child pornography for purposes of the multiplicity
argument"). For aught that appears, the government could have
charged the defendant with multiple counts of possession under
section 2252A(a)(5)(B). But it did not do so, and we cannot permit
the government to emphasize the superficial affinities between
3
We recognize that our holding may be in tension with dictum
in United States v. Schales, 546 F.3d 965, 979 (9th Cir. 2008),
which suggests that "where a defendant has stored sexually explicit
images in separate mediums, the government may constitutionally
charge that defendant with separate counts [under section 2252] for
each." The Schales court relied on Planck, 493 F.3d at 504, in
support of this statement, apparently without realizing that Planck
was a section 2252A case. This imprecision undercuts the statement
because, as we have explained, these statutes are differently
worded, and each of them needs to be interpreted on its own terms.
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these two laws and gloss over their differences in order to salvage
an improvident charging decision.
The government also cites case law dealing with drug and
gun possession offenses in support of its argument that section
2252(a)(4)(B) contemplates multiple units of prosecution in this
type of child pornography case. None of the statutes underpinning
those prosecutions uses the term "one or more." See, e.g., 18
U.S.C. § 922(g) ("It shall be unlawful for any person [under
certain enumerated circumstances] to ship or transport in
interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition . . . ." (emphasis supplied));
21 U.S.C. § 841(a)(1) (making it unlawful to possess "a controlled
substance" (emphasis supplied)). For this reason, the cases cited
shed no light on the appropriate unit of prosecution under section
2252(a)(4)(B).
The short of it is that, on the facts of this case, the
defendant's unlawful possession of a multitude of files on two
interlinked computers located in separate rooms within the same
dwelling gave rise to only a single count of unlawful possession
under section 2252(a)(4)(B). Yet, the government charged the
defendant with multiple counts of possession. His simultaneous
convictions and sentences on those counts violated his
constitutional right to be free from double jeopardy. See United
States v. Rivera-Martinez, 931 F.2d 148, 153 (1st Cir. 1991).
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While other cases, on different facts, might appropriately give
rise to multiple possession charges under section 2252(a)(4)(B),
the facts of this case do not support such an outcome.
B. Discovery.
We turn next to the defendant's contention that the
district court should have granted his pretrial motion to compel
production of the source code of the EP2P program (essentially, the
human-readable version of the instructions used by a computer
running EP2P). In the district court, the defendant claimed that
he was entitled to the source code on several grounds. The court
denied the motion. The only point that warrants discussion
involves Federal Rule of Criminal Procedure 16(a)(1)(E), which
requires the government to permit the defendant to examine and copy
documents, data, and objects in its control if the items are
material to preparing the defense or if the government plans to use
them in its case in chief.4
We review district court determinations under Rule 16 for
abuse of discretion. United States v. Correa-Alicea, 585 F.3d 484,
493 (1st Cir. 2009). Reversible error may not be found unless the
4
In the court below, the defendant also attempted to invoke
Federal Rule of Criminal Procedure 16(a)(1)(F), which requires the
government to turn over certain reports of scientific examinations,
and Federal Rule of Criminal Procedure 16(a)(1)(G), which requires
the government to turn over written summaries of proposed expert
testimony. These remonstrances are patently meritless, and we
reject them out of hand.
-16-
objecting party can show prejudice. See United States v. Spinosa,
982 F.2d 620, 631 (1st Cir. 1992).
The FBI developed EP2P as an investigatory tool. Its
source code is closely held; it is not shared with or accessible to
the agents who use the program, let alone the public. The
defendant argues that he had to obtain the source code in order to
determine whether he could credibly challenge the reliability of
the technology and, thus, block the expert testimony proffered by
the government on the EP2P program and how it implicated the
defendant. See Fed. R. Evid. 702; see also Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 597 (1993) (calling on courts to ensure
that an expert's testimony "rests on a reliable foundation and is
relevant to the task at hand"). In his view, his inability to
examine the source code prevented him from mounting such a
challenge.5
Faced with the defendant's motion to compel, the district
court convened an evidentiary hearing. The court heard testimony
from Agent P. Michael Gordon, the government's proposed EP2P
expert. Agent Gordon had been involved in the testing of the
program, had instructed other agents about its use, and had
5
In passing, the defendant alludes to the hampering of his
ability to cross-examine witnesses effectively. See U.S. Const.
amend. VI. But he has offered no developed argumentation on this
ground, and it is a "settled appellate rule that issues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
-17-
participated in over eighty investigations in which EP2P was
employed. He demonstrated, among other things, how to check the
results of an EP2P investigation manually to ensure that the files
transferred had in fact come from the location identified through
EP2P. He vouchsafed that, in his wide experience, no EP2P
investigation had ever yielded a false positive. The district
court denied the motion to compel and concluded that Agent Gordon's
testimony passed Daubert muster.
We need not linger long over the denial of the motion to
compel. Even if the source code were discoverable under Rule 16 —
a matter on which we take no view — the defendant cannot
demonstrate prejudice from its nondisclosure. The government gave
the defendant a digital file recording the transfer from the
defendant's laptop to Agent Cecchini's computer. It also gave the
defendant a copy of the FBI guide detailing how to reconstruct an
EP2P session manually (using only the recording and publicly
available programs). The government presented testimony indicating
that its agents had used these materials to reconstruct the
transfer and had verified that the files downloaded by Agent
Cecchini came from the defendant's computer. The defendant neither
contradicted nor cast the slightest doubt upon this testimony.
This evidence makes it pellucid that the forbidden files were
located on the defendant's computers and transferred to Agent
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Cecchini. Consequently, any error in the application of the EP2P
program was harmless.
Relatedly, the defendant — who does not challenge Agent
Gordon's qualifications as an EP2P expert — nevertheless contends
that it was error for the court to allow his expert testimony. In
this regard, the defendant asserts that the EP2P technology was too
untested to form an adequate foundation for the agent's
attestations. In making its Daubert determination, the district
court acknowledged that the technology had not been independently
tested. Relying on a compendium of other facts, however, it found
sufficient evidence of EP2P's reliability to permit Agent Gordon's
testimony. We review this ruling for abuse of discretion. See
Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 83
(1st Cir. 1998).
Evidence Rule 702 provides that if "scientific,
technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue,"
"[a] witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify [thereto] in the
form of an opinion or otherwise" so long as certain requirements
are met. Fed. R. Evid. 702. In evaluating whether proposed expert
testimony satisfies those requirements, the district court must
look to "a number of factors, including but not limited to the
verifiability of the expert's theory or technique, the error rate
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inherent therein, whether the theory or technique has been
published and/or subjected to peer review, and its level of
acceptance within the scientific community." Samaan v. St. Joseph
Hosp., 670 F.3d 21, 31-32 (1st Cir. 2012) (internal quotation marks
omitted).
The defendant concedes that the evidentiary hearing held
on his motion to compel was the functional equivalent of a Daubert
hearing. Although Agent Gordon was not a programmer, did not know
the program's authors, and had never seen the source code, he had
significant specialized experience with both EP2P and the manual
re-creation of EP2P sessions. He testified that the program, with
respect to identifying the source of particular files, had no error
rate. He also demonstrated how the results of an EP2P
investigation could be independently verified and made it clear
that EP2P had never yielded a false positive. These showings
sufficiently evinced the reliability of EP2P. Consequently,
permitting Agent Gordon to testify at trial about the program was
well within the district court's discretion.
In an effort to blunt the force of this reasoning, the
defendant laments that EP2P has not been subjected to peer review
in the scientific community. This is true as far as it goes — but
it does not take the defendant very far. The Daubert factors are
not a "'definitive checklist or test,' but form the basis for a
flexible inquiry into the overall reliability of a proffered
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expert's methodology." Ruiz-Troche, 161 F.3d at 81 (quoting
Daubert, 509 U.S. at 593). Here, moreover, there is a credible
explanation for the absence of peer review. The record shows that
the source code is purposely kept secret because the government
reasonably fears that traders of child pornography (a notoriously
computer-literate group) otherwise would be able to use the source
code to develop ways either to evade apprehension or to mislead the
authorities. This circumstance satisfactorily explains the absence
of any peer review. Cf. Puerto Rico v. United States, 490 F.3d 50,
64 (1st Cir. 2007) (recognizing "a qualified privilege for law
enforcement techniques and procedures"); United States v. Cintolo,
818 F.2d 980, 1002 (1st Cir. 1987) (discussing qualified privilege
for confidential government surveillance information where
"discoverability of this kind of information will enable criminals
to frustrate future government surveillance and perhaps unduly
jeopardize the security of ongoing investigations").
C. Suppression.
Following the denial of his motion to compel, the
defendant moved to suppress the fruits of the FBI's search,
alleging that the affidavit in support of the warrant was
inadequate. The district court denied this motion.
The defendant's arguments in support of his motion to
suppress bear a strong family resemblance to his arguments in
support of his motion to compel. He posits that EP2P is largely
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untested and insists that the affidavit filed in support of the
search warrant did not sufficiently demonstrate its reliability.
The Fourth Amendment provides that "no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation."
U.S. Const. amend. IV. Probable cause exists when "the affidavit
upon which a warrant is founded demonstrates in some trustworthy
fashion the likelihood that an offense has been committed and that
there is sound reason to believe that a particular search will turn
up evidence of it." United States v. Aguirre, 839 F.2d 854, 857-58
(1st Cir. 1988). The issuing magistrate must examine the totality
of the circumstances to determine the existence of probable cause.
United States v. Schaefer,
87 F.3d 562, 565 (1st Cir. 1996). This
prescription binds reviewing courts, but the issuing magistrate's
determination "should be paid great deference." Illinois v. Gates,
462 U.S. 213, 236 (1983) (quoting Spinelli v. United States,
393
U.S. 410, 419 (1969)) (internal quotation marks omitted).
When reviewing a district court's denial of a motion to
suppress, the scrutiny afforded by the court of appeals must be
tempered by yet another level of deference: we assess the district
court's factual findings for clear error. See United States v.
Garcia-Hernandez, 659 F.3d 108, 111 (1st Cir. 2011). Withal, we
assay the district court's rulings of law de novo. See id.
In this case, the circumstances, viewed in their
totality, leave no doubt that there was probable cause to support
-22-
the warrant. The supporting affidavit chronicled Agent Cecchini's
investigation and spelled out how it led to the defendant's IP
address and, in turn, his abode. In the process, it described the
EP2P technology that the FBI had developed for such investigations
and had used in this case.
The defendant objects to these references to EP2P on the
basis that the technology was too untested to meet the requirements
of the Federal Rules of Evidence. This argument mixes plums and
pomegranates; the Federal Rules of Evidence do not apply to
proceedings surrounding the issuance of a search warrant. See Fed.
R. Evid. 1101(d)(3). Instead, the issuing magistrate must "make a
practical, common-sense decision whether . . . there is a fair
probability that contraband or evidence of a crime will be found in
a particular place." Gates, 462 U.S. at 238. In this instance,
the magistrate made a sensible determination, based on a detailed
affidavit, that a search of the defendant's residence was likely to
turn up illicit images. Because probable cause "does not require
scientific certainty," Roche v. John Hancock Mut. Life Ins. Co., 81
F.3d 249, 254 (1st Cir. 1996), no more was exigible.
The defendant tries to attack the affidavit in yet
another way, suggesting that it contained knowing or reckless
material omissions about the reliability of EP2P. In particular,
he focuses again on the absence of peer review. This attack is
easily repulsed. Here, the allegedly omitted statements — what the
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FBI knew about the reliability of EP2P, including, but not limited
to, the absence of peer review — would, if included in their
entirety, tend to show that EP2P was reliable. Thus, the alleged
omissions in the supporting affidavit were not material: had the
omitted statements been added, they would not have diluted the
affidavit's showing of probable cause. See United States v.
Rumney, 867 F.2d 714, 720 (1st Cir. 1989).
Put in the simplest of terms, had the affiant included
the additional statements describing what was known about EP2P's
reliability, those statements would have served no purpose except
to strengthen the affidavit. It would be wildly illogical to
suppress the fruits of a search on the ground that the warrant
application omitted statements that, if included, would have
increased the affidavit's persuasive force. Cf. United States v.
Bynum, 293 F.3d 192, 198-99 (4th Cir. 2002) (observing that an
omission in an affidavit will not be fatal "just because the
officer fails to include in th[e] affidavit all of the information
known to him supporting a finding of probable cause").
D. Jury Instructions.
The defendant presents twin claims of instructional
error. We deal with them one by one.
He first asserts that he was entitled to a "lesser
included offense" instruction on the distribution count. In his
view, distribution necessarily entails possession. Thus,
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possession must be a lesser included offense of distribution, and
the jury should have been instructed accordingly. See Fed. R.
Crim. P. 31(c)(1).
We review de novo the trial judge's decision about
whether to give a lesser included offense instruction. United
States v. Boidi, 568 F.3d 24, 27 (1st Cir. 2009) (citing United
States v. Flores,
968 F.2d 1366, 1367-68 (1st Cir. 1992)). The
defendant "is entitled to such an instruction where (1) the lesser
offense is included in the offense charged, (2) a contested fact
separates the two offenses, and (3) the evidence would permit a
jury rationally to find the defendant guilty of the lesser offense
and acquit him of the greater." Id. (alterations, citations, and
internal quotation marks omitted).
Our inquiry here can stop at the first step of this
pavane. In deciding whether an offense is necessarily included in
the offense charged, we apply "an elements test, under which one
offense is not necessarily included in another unless the elements
of the lesser offense are a subset of the elements of the charged
offense." Carter v. United States, 530 U.S. 255, 260 (2000)
(quoting Schmuck v. United States,
489 U.S. 705, 716 (1989))
(internal quotation marks omitted). "To pass the test, all the
elements of the lesser included offense must be elements of the
charged offense — but the charged offense must include at least one
additional element." Flores, 968 F.2d at 1369.
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We have stated, albeit in the context of drug
trafficking, that "[w]hile 'possession' is certainly helpful in
proving distribution, it is technically not a necessary element."
United States v. Sepulveda, 102 F.3d 1313, 1317 (1st Cir. 1996).
The same is true in this child pornography case. One can envision
circumstances in which an individual could be guilty of
distribution without ever obtaining possession of (or even coming
into contact with) the contraband. For example, the broker of a
deal between a person who has child pornography and a person who
wishes to procure it may be guilty of distribution but not guilty
of possession. Cf. United States v. Brunty,
701 F.2d 1375, 1381
(11th Cir. 1983) (observing, in drug context, that distribution may
consist of "arranging or supervising the delivery" of contraband or
"negotiating for or receiving the purchase price" of contraband).
Accordingly, possession is not a necessary element of distribution
in a child pornography case, and the district court did not err in
refusing to give the requested lesser included offense instruction.
The defendant's second claim of instructional error
contemplates that the district court should have embraced his
proposed carve-out to its instruction on distribution. This carve-
out stated in pertinent part that proof of "possession of child
pornography and even possession of child pornography with the
intent to distribute child pornography is not sufficient to prove
distribution." Where, as here, a trial court refuses to give a
-26-
requested instruction, its refusal is erroneous "only if the
requested instruction was (1) correct as a matter of substantive
law, (2) not substantially incorporated into the charge as
rendered, and (3) integral to an important point in the case."
United States v. McGill, 953 F.2d 10, 13 (1st Cir. 1992).
We have canvassed the instructions as a whole. See
Cintolo, 818 F.2d at 1003. After conducting this canvass, we are
satisfied that the instructions given covered substantially the
same ground as the instruction requested. The court's charge
adequately communicated the disparate elements of possession and
distribution, satisfactorily illuminated the difference between the
two, and made plain what the government needed to prove to convict
on each offense. While the defendant may have wanted the court to
put the distinction in his chosen words, the court was under no
obligation to "parrot the exact language that the defendant
prefers." McGill, 953 F.2d at 12. The court's instructions
constituted a fair and reasonably complete statement of the
applicable law. Our jurisprudence requires no more.
E. Judgment of Acquittal.
We now address the defendant's plaint that the government
introduced insufficient evidence of distribution and that,
therefore, the court should have granted his motion for judgment of
acquittal on the distribution count. See Fed. R. Crim. P. 29. We
review the denial of a motion for judgment of acquittal de novo.
-27-
See United States v. Dwinells, 508 F.3d 63, 72 (1st Cir. 2007). In
this exercise, we examine "whether, after assaying all the evidence
in the light most amiable to the government, and taking all
reasonable inferences in its favor, a rational factfinder could
find, beyond a reasonable doubt, that the prosecution successfully
proved the essential elements of the crime." United States v.
O'Brien,
14 F.3d 703, 706 (1st Cir. 1994).
In the case at hand, the government had to prove that the
defendant knowingly distributed a visual depiction of a minor
engaging in sexually explicit conduct and that this visual
depiction had either traveled in interstate commerce or been
produced using materials that had traveled in interstate commerce.
See 18 U.S.C. § 2252(a)(2). The government's proof of the
jurisdictional element is rock solid: the illicit files traveled
via the Internet and, thus, traveled in interstate commerce. See
United States v. Lewis, 554 F.3d 208, 215 (1st Cir. 2009). The
defendant does not contest — nor could he rewardingly do so — that
the transmitted material satisfied the subject matter element of
the statute. It constituted child pornography.
Our inquiry reduces, therefore, to whether there was
enough evidence to prove that the defendant knowingly distributed
the files. The defendant protests that there was not. He claims
that he did not take any affirmative action in order to send the
files to Agent Cecchini and that he may not even have been at his
-28-
computer when the files were downloaded. Absent some positive act
on his part, his thesis runs, evidence showing that he put files in
a particular folder is insufficient to support a conviction for
distribution.
Although it appears that this issue has not been
addressed in this circuit, we believe that the defendant's actions
constituted distribution within the meaning of the statute. The
word "distribution" is not defined in the statute itself, but the
plain meaning of distribution is "[t]he act or process of
apportioning or giving out." Black's Law Dictionary 543 (9th ed.
2009). When an individual consciously makes files available for
others to take and those files are in fact taken, distribution has
occurred.
The fact that the defendant did not actively elect to
transmit those files is irrelevant. In United States v. Shaffer,
472 F.3d 1219 (10th Cir. 2007), the Tenth Circuit analogized
passive distribution over a peer-to-peer network to a self-serve
gas station: "Just because the operation is self-serve, or
. . . passive, we do not doubt for a moment that the gas station
owner is in the business of 'distributing' . . . gasoline; the
raison d'etre of owning a gas station is to do just that." So it
is here. A rational jury could conclude, as this jury did, that
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the defendant intentionally made his files available for the taking
and that Agent Cecchini simply took him up on his offer.6
The evidence unquestionably supports a finding that the
defendant downloaded LimeWire and chose to make his files available
for sharing. The evidence likewise supports a finding that the
defendant set up LimeWire to share the contents of a specific
folder called "limewire picsvids" with the entire LimeWire network.
Hence, the defendant affirmatively acted to make the files in that
particular folder available to other users because, by default,
LimeWire shares only the files in a specially created "Shared"
folder.
Other evidence buttresses these findings. The jury could
have found that the defendant was computer-savvy. After all, he
set up his home network and installed software to erase his web
browsing history. Tellingly, however, he never availed himself of
the LimeWire feature that allows users to turn off sharing, nor did
he lift a finger to move the pornographic files out of the
designated folder in order to prevent them from being shared with
others. On these facts, the jury could rationally have concluded
beyond any reasonable doubt that the defendant had the required
scienter.
6
The defendant attempts to distinguish this case from Shaffer
by noting that he did not receive anything of value for sharing his
files. See 472 F.3d at 1222. We think that this is a distinction
without a difference. The statute of conviction does not provide
any justification for insisting upon such a limitation.
-30-
In upholding the district court's denial of the
defendant's motion for judgment of acquittal, we reject the
defendant's argument that the proof showed no more than that he
possessed files with the intent to distribute them. The evidence
was sufficient to support a finding that the defendant transmitted
child pornography to Agent Cecchini. The fact that distribution
was effected to an undercover law enforcement officer does not
mitigate the fact that distribution occurred.
F. Sentencing.
The defendant mounts a very narrow attack on his
sentence. The target of this attack is the two-level enhancement
for distribution other than to a minor or in exchange for a thing
of value. USSG §2G2.2(b)(3)(F). He accuses the sentencing court
of double counting when it relied on the fact that he distributed
pornographic images both to give him a higher base offense level
and to support the challenged enhancement. Inasmuch as this
argument centers on the district court's legal interpretation of
the guidelines, our review is de novo. United States v. Paneto,
661 F.3d 709, 715 (1st Cir. 2011).
The defendant's claim of sentencing error is unavailing.
We have said before, and today reaffirm, that "[d]ouble counting in
the sentencing context 'is a phenomenon that is less sinister than
the name implies.'" United States v. Lilly, 13 F.3d 15, 19 (1st
Cir. 1994) (quoting United States v. Zapata,
1 F.3d 46, 47 (1st
-31-
Cir. 1993)). The Sentencing Commission has shown itself fully
capable of expressly forbidding double counting under the
guidelines when appropriate. See, e.g., USSG §3A1.1, comment.
(n.1). We regard it as settled that when "neither an explicit
prohibition against double counting nor a compelling basis for
implying such a prohibition exists," courts should be reluctant to
read in a prohibition where there is none. Lilly, 13 F.3d at 19-
20; see United States v. Vizcarra, 668 F.3d 516, 525-27 (7th Cir.
2012) (collecting cases requiring a textual basis for prohibiting
double counting).
In this instance, the commentary to section 2G2.2
provides no such directive. Instead, the structure of the
guideline strongly suggests the opposite. The sentencing
guidelines set the base offense level for child pornography
offenses at either 18 or 22, depending on the particular statute of
conviction. See USSG §2G2.2(a). Section 2G2.2(b) further
stratifies the offenses: for example, a greater enhancement is
warranted if the offender was compensated for transferring child
pornography or gave it to a minor; more lenient treatment is
warranted if the defendant only engaged in distribution
simpliciter. Id. §2G2.2(b)(3).
The variations are nearly infinite. On the one hand,
there are offenses, such as solicitation, 18 U.S.C.
§ 2252A(a)(3)(B), for which the higher base offense level of 22 but
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none of the section 2G2.2(b)(3) enhancements may apply. See USSG
§2G2.2(a), (b)(1) & comment. (n.1) (adjusting downward two levels
if offense is simple solicitation and clarifying that solicitation
is not distribution). On the other hand, there are offenses, like
the one at issue here, under which one or more of the distribution-
related section 2G2.2(b) enhancements almost always will apply.
See USSG §2G2.2, comment. (n.1). Viewed against this chiaroscuro
backdrop, it is apparent that the sentencing guidelines broadly
cover all child pornography offenses and use the offense level
spread and subsequent adjustments to reach appropriate benchmarks
for different permutations of possession, solicitation, and
distribution.
To sum up, there is absolutely no basis for an inference
that the Sentencing Commission intended to preclude double counting
under these circumstances. Thus, the district court did not err in
dialing up the challenged enhancement.
G. Restitution.
We end our odyssey with the district court's grant of
restitution. We review restitution orders for abuse of discretion,
examining the court's subsidiary factual findings for clear error
and its answers to abstract legal questions de novo. See United
States v. Hensley, 91 F.3d 274, 277 (1st Cir. 1996).
After learning of the pendency of this prosecution, two
of the children depicted in images collected by the defendant —
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whom we shall call "LS" and "Vicky" — requested restitution. Each
victim proffered psychological reports and other documentation in
support of her claim for restitution. The claimed losses were non-
pecuniary and, therefore, difficult to quantify. LS calculated her
losses due to the online trading of her image to be close to
$2,000,000, whereas Vicky sought slightly more than half that
amount. The district court awarded restitution in the amount of
$10,000 to each claimant.
The restitution scheme associated with child pornography
offenses is limned in 18 U.S.C. § 2259. It provides that the
issuance of a restitution order is mandatory if certain criteria
are met, regardless of either the defendant's ability to pay or the
victim's receipt of some compensation from another source. See id.
§ 2259(b)(4). We have interpreted this statute to require district
courts to find, as a predicate to an award of restitution, (i) that
the individual is a "victim" within the meaning of the law and (ii)
that the defendant's actions proximately caused the victim's
losses. See United States v. Kearney, 672 F.3d 81, 94-100 (1st
Cir. 2012). If these requirements are satisfied, the court must
proceed to make a "reasonable determination of appropriate
restitution." Id. at 100 (quoting United States v. Innarelli,
524
F.3d 286, 294 (1st Cir. 2008)) (internal quotation marks omitted).
The defendant does not dispute that both LS and Vicky are
victims: they have suffered and continue to suffer as a result of
-34-
the ongoing trade and publication of their images online. Nor does
the defendant dispute the reasonableness of the dollar amounts
awarded. Instead, he takes aim at whether the government made an
adequate showing that his actions caused the victims' losses.
Under Kearney, the applicable causation standard is one
of proximate cause. The evidence must show that the defendant's
conduct created a reasonably foreseeable risk of harm to the
victim, notwithstanding that others may also have contributed to
that harm.7 Id. at 96, 98.
Here, the able district court correctly anticipated
Kearney and found that the harms suffered by the victims were the
"proximate result" of the defendant's actions. It concluded that
although the defendant was "further down the food chain" than the
victims' initial abusers, his viewing and distribution of the
images damaged the victims and caused them ongoing shame,
humiliation, and feelings of helplessness. Since the record
adequately supports these findings, see id. at 97-100 (upholding
finding of proximate cause in analogous circumstances), we uphold
the restitutionary awards.
7
Vicky has filed an amicus brief urging us to find that there
is no proximate cause requirement under 18 U.S.C. § 2259 and that
Kearney's contrary suggestion is dictum. Neither the government
nor the defendant has espoused this theory. Consequently, we
adhere to the established principle that an amicus may not
"interject into a case issues which the litigants, whatever their
reasons might be, have chosen to ignore." Lane v. First Nat'l Bank
of Bos., 871 F.2d 166, 175 (1st Cir. 1989).
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III. CONCLUSION
The only remaining question is how to redress the double
jeopardy violation that we have identified. See supra Part II(A).
We conclude that the most salubrious course is for us to remand to
the lower court for the purpose of redressing the constitutional
violation. The court, after hearing from the parties, should
either merge the two possession counts or vacate the conviction and
sentence on one of them. The conviction on the distribution count
may stand. The district court may, if it deems it appropriate to
do so, resentence the defendant on the two surviving counts. Cf.
United States v. García-Ortiz, 657 F.3d 25, 31 (1st Cir. 2011)
(observing that when a conviction on one of several counts is
vacated, "the proper course often is to remand for resentencing on
the other (non-vacated) counts"); United States v. Pimienta-
Redondo,
874 F.2d 9, 14-16 (1st Cir. 1989) (en banc) (holding that
a district court may review and redetermine the appropriate
sentence on remand from a partially successful appeal). In the
alternative, it may allow the sentences on those counts to remain
intact.
We need go no further. All of the defendant's claims of
error, save for his claim of multiplicity, see supra Part II(A),
are rejected.
-36-
Affirmed in part and remanded for further proceedings consistent
with this opinion.
— Concurring Opinion Follows —
-37-
LYNCH, Chief Judge, concurring. I join Judge Selya's
excellent opinion, save for the multiplicity portion of the
opinion, Part II, A. I do join the holding that counts two and
three are multiplicitous and that the case must be remanded for
consideration of the effect of this multiplicitousness on
resentencing.
The majority opinion states that its holding is
restricted to the particular facts of this case, see majority op.
at 12; I agree. I write separately to say that in my view both the
question presented and the analysis needed to resolve this question
are narrow. I would postpone engaging in any broader analysis
until a future case.
Here, the defendant possessed a desktop computer and a
laptop computer; he used the laptop to knowingly download child
pornography from the internet and to store the images; he used the
desktop as an additional storage unit for the images. The two
computers contained some overlapping images, as would be expected,
since they were connected by an internal network, so that files
could move freely between them.
The images were, as a result, on both hard drives. And,
while hard drives are "matters" under 18 U.S.C. § 2252(a)(4)(B),
that does not mean that the two networked hard drives here should
be viewed as separate matters. The question is whether Congress
intended this simultaneous possession in one home to be chargeable
-38-
as one or two crimes of possession. I think it is clear that
Congress did not intend the possession of two networked computers
with overlapping images, in a defendant's home, to constitute two
crimes. This is a narrow issue of whether Congress would have
intended to punish the defendant separately for each of the hard
drives on these linked computers.
I would prefer not to go any further, and in particular,
I would prefer not to address United States v. Polouizzi, 564 F.3d
142 (2d Cir. 2009), or its reading of United States v. Kimbrough,
69 F.3d 723, 730 (5th Cir. 1995).
The question of Congressional intent as to very different
factual situations on single vs. multiple crimes strikes me as not
being resolved by a plain reading of the statutory text. Neither
the 1998 amendment, which changed the language in 18 U.S.C.
§ 2252(a)(4)(B) from knowingly possessing "3 or more [matters]"
containing child pornography to knowingly possessing "1 or more
[matters]" of the same, nor the statute's affirmative defense of
possession of "less than three matters containing any visual
depiction" of child pornography, 18 U.S.C. § 2252(c)(1), resolves
whether Congress intended the statute to be used to charge one or
multiple offenses on facts different from those in this case. We
have not received briefing on any legislative history of
section 2252(a)(4)(B) which might clarify congressional intent on
this issue. It is, furthermore, not obvious that Congress intended
-39-
to bar multiple counts in cases, different from this one, where a
defendant has multiple collections of child pornography in
different mediums, such as books, videos, photo albums, computer
hard drives, internet storage providers, or file hosting services,
and where those collections are acquired at different times, from
different sources. I understand the majority to have reserved on
these questions and so I join the result.
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