United States v. Chiaradio

• Decision Date: 11 July 2012
• Docket Number: No. 11–1290.,11–1290.
• Citation: 684 F.3d 265
• Parties: UNITED STATES of America, Appellee, v. David CHIARADIO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

684 F.3d 265

UNITED STATES of America, Appellee,

v.David CHIARADIO, Defendant, Appellant.

No. 11–1290.

United States Court of Appeals, First Circuit.

Heard May 9, 2012.

Decided July 11, 2012.

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.

Before LYNCH, Chief Judge, SELYA and THOMPSON, Circuit Judges.

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.

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 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 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, seeUSSG § 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.

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, see18 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. SeeU.S. Const. amend. V; Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (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, 100 S.Ct. 2260). 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 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.” ¹18 U.S.C. § 2252(a)(4)(B). Here, 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...