Commonwealth v. Molina

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SJC-12022

COMMONWEALTH vs. JOSUE MOLINA.

Suffolk. October 6, 2016. - February 7, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.

Obscenity, Child pornography, Dissemination of matter harmful to
minor. Constitutional Law, Search and seizure,
Confrontation of witnesses. Search and Seizure, Warrant,
Computer. Evidence, Information stored on computer,
Intent. Subpoena. Intent. Practice, Criminal, Subpoena,
Restitution, Confrontation of witnesses. Restitution.

Indictments found and returned in the Superior Court
Department on August 27, 2012.

A pretrial motion to suppress evidence was heard by
Mitchell H. Kaplan, J.; the cases were heard by Brian A. Davis,
J., and a motion for restitution was considered by him.

The Supreme Judicial Court granted an application for
direct appellate review.

Ethan C. Stiles for the defendant.
Ryan E. Ferch, Assistant Attorney General (Nancy Ruthstein,
Assistant Attorney General, also present) for the Commonwealth.
 2

BOTSFORD, J. The defendant, Josue Molina, appeals from his

child pornography convictions under G. L. c. 272, §§ 29B and

29C, on three grounds. First, he argues that the search warrant

for the apartment in which he was living was overbroad as to

places and things to be searched. We disagree, concluding that

the search warrant was appropriately particularized. Second,

the defendant challenges the validity of the administrative

subpoena that issued under G. L. c. 271, § 17B, for Internet

service records; he argues that the subpoena, to be

constitutional, could only be issued based on a showing of

probable cause. We similarly reject this argument. Finally,

the defendant argues that the Commonwealth failed to prove that

he had the lascivious intent necessary to support a conviction

under G. L. c. 272, § 29B (§ 29B). Although we agree with the

defendant that lascivious intent is required to be proved with

respect to every type of conduct proscribed by § 29B, we

conclude that this requirement was met in this case. We affirm

the defendant's convictions.

The Commonwealth cross-appeals, arguing that it is entitled

to a restitution hearing in this case, and that the victim for

whom the Commonwealth seeks restitution is not required as a

matter of law to appear and testify in order to protect the

defendant's constitutional right of confrontation. We agree,

and remand for the requested restitution hearing.
 3

1. Background.1 a. File-sharing. The dissemination of

child pornography is facilitated by free "peer-to-peer" file-

sharing programs, which allow users to directly connect to other

users' computers in order to search and download files shared by

other users. See United States v. McLellan, 792 F.3d 200, 205

(1st Cir.), cert. denied, 136 S. Ct. 494 (2015). Ares is one

such file-sharing program, freely available to the general

public for download. Ares requires users to accept a license

agreement explaining that any files stored in the program's

default download location, called "My Shared Folder," are

accessible to other users. Users may move downloaded files out

of this default folder and save them elsewhere, beyond the reach

of other Ares users.

Another version of the Ares program, known as Roundup Ares,

is available only to law enforcement. By conducting searches

using Roundup Ares of terms commonly associated with child

pornography, a law enforcement investigator can generate the

1
This background section is based on the testimony of the
witnesses at the jury-waived trial in this case. Although not
explicitly credited in the judge's oral findings at the end of
the trial, the testimony we summarize was uncontroverted, and it
is not challenged by the defendant on appeal. With respect to
Internet file-sharing and the Ares program in particular, the
search warrant application at issue in this case had attached to
it a printed explanation entitled "Peer to Peer (P2P) File
Sharing & the Ares Network" that provided information consistent
with the trial testimony summarized here. The warrant
application with attachments was admitted without objection as
an exhibit at trial.
 4

Internet protocol (IP) addresses2 of program users sharing

suspected files of child pornography. Every computer file has a

unique identifier known as a "secure hash algorithm" (hash

value). Composed of thirty-two characters, hash values are like

"digital fingerprints" allowing law enforcement agencies to

recognize files previously identified as child pornography. See

Commonwealth v. Martinez, 476 Mass. , & n.1 (2017).

b. Facts. On March 12, 2012, State police Trooper Michael

Murphy conducted a search for child pornography by accessing the

Roundup Ares program. His search indicated that a computer

associated with the IP address 108.49.7.93 might then be sharing

2
An Internet protocol (IP) address is a string of numbers
identifying a point of network entry to the Internet, at a
specific date and time, to enable the routing of Internet
traffic. See Internet Assigned Numbers Authority, Glossary of
Terms, http://www.iana.org/glossary [https://perma.cc/S55N-
Z9MB]; United States v. Kearney, 672 F.3d 81, 84 n.1, 89-90 &
n.6 (1st Cir. 2012). An IP address does not "identify an exact
physical location, only an electronic destination on the
Internet." Mackey, Schoen, & Cohn, Electronic Frontier
Foundation, Unreliable Informants: IP Addresses, Digital Tips
and Police Raids 5 & nn.4-6 (Sept. 2016), available at
https://www.eff.org/files/
2016/09/22/2016.09.20_final_formatted_ip_address_white_paper_
0.pdf [https://perma.cc/Y42U-C5TG] (EFF, Unreliable Informants).
It is possible to link an IP address to a particular physical
location at a particular point in time through information
supplied by an Internet service provider (ISP), because when a
subscriber purchases Internet service from an ISP, the ISP
assigns a unique IP address to the subscriber at a particular
physical address supplied by the subscriber. See Commonwealth
v. Martinez, 476 Mass. , (2017); Commonwealth v. Anthony,
451 Mass. 59, 62 & n.3 (2008). See also United States v.
McLellan, 792 F.3d 200, 213-214 (1st Cir.), cert. denied, 136 S.
Ct. 494 (2015).
 5

child pornography files. By connecting directly to that

computer, Murphy was able to view a list of the files in its

shared folder. Among the listed file titles, Murphy recognized

terms commonly associated with child pornography and proceeded

to download two complete video files. He viewed both and

determined that they depicted child pornography, specifically,

nude prepubescent females engaged in sexual conduct.

In order to identify the account holder associated with the

IP address, at Murphy's request, the district attorney for the

Essex district sent an administrative subpoena to Verizon

Internet Services, Inc. (Verizon), pursuant to G. L. c. 271,

§ 17B. Verizon responded, indicating that IP address

108.49.7.93 was associated with a subscriber named "Hermes

Delcid" at a certain address in Revere (apartment). Murphy then

referred the investigation to the cyber crime division in the

office of the Attorney General.

As a member of that division, State police Trooper Daniel

Herman conducted physical surveillance of the apartment, and

observed outside the house a mailbox with five names on it,

including Delcid's (and also including the defendant's). Herman

performed as well a check of registry of motor vehicles records,

which confirmed that address as Delcid's apartment. Based on

this information, on April 2, 2012, State police Trooper Mark

Walsh, also of the Attorney General's cyber crime division,
 6

applied for and obtained a warrant to search the apartment and

in particular for the following: electronic devices containing

evidence of child pornography; evidence of child pornography in

any other format; evidence of use, control, ownership, or access

to the Verizon Internet account of Delcid at that address;

evidence of ownership, access, or control of the peer-to-peer

network that was operating with IP address 108.49.7.93; evidence

of custody or control of the apartment; and evidence of use,

control, ownership, possession, or access to electronic devices

at the apartment. Walsh's supporting affidavit detailed his

experience, summarized the investigation, and provided

background information on peer-to-peer file sharing and the Ares

file-sharing program. See note 1, supra. The search warrant

authorized the search of the apartment described without naming

any person to be searched.

State police officers executed the search warrant on the

morning of April 4, 2012; some officers proceeded into the

apartment while others remained in the driveway. Inside the

apartment, the officers found Delcid, his wife, and a small

child. Forensic examiner Mark Scichilone3 "previewed" a computer

located in the living room and belonging to Delcid, but excluded

it from further search when his preliminary review yielded no

3
Mark Scichilone worked in the Attorney General's computer
forensics laboratory.
 7

files consistent with child pornography. In a bedroom later

identified as the defendant's, officers observed the Ares

program operating on an open laptop computer.4 Scichilone

photographed the computer screen, which showed downloads and

uploads of child pornography files in progress from and to other

computers.

In the driveway, officers observed an idling motor vehicle

with someone sitting in the front passenger seat. State police

Lieutenant Steven Fennessy approached the vehicle and spoke to

its occupant, who was the defendant. After being informed by

Fennessy that he was not under arrest, the defendant stated that

he lived in the apartment,5 that he owned a laptop computer

located in his bedroom at the front of the apartment, and that

he used the Ares program. In response, Fennessy advised the

defendant of the Miranda rights, and the defendant stated that

he was willing to continue the conversation.

At that point, Fennessy and the defendant moved to an

unmarked police vehicle, where the defendant signed a Miranda

4
The laptop computer was sitting on top of a desktop
computer and attached to an external hard drive, both of which
were also seized.
5
The defendant shared the apartment with several roommates
including Hermes Delcid. The record is unclear as to leasing
arrangements for the unit or relationships among its occupants,
but the parties stipulated that the defendant's bedroom was
generally understood to be his own.
 8

waiver form and the rest of the interview was recorded. The

defendant admitted to being interested in child pornography and

to having downloaded about twenty such video recordings, and

cited several search terms he had used. He estimated that he

had been downloading child pornography for about five years, and

recalled having previously used another file-sharing program on

the desktop computer in his room. He further stated that he

owned an external hard drive. The defendant characterized child

pornography as "when underage or any kids, they record it and

it's like sex abuse basically;" he estimated the age of the

girls depicted in recent downloads to be about nine. He denied

knowing any of the children depicted or having ever sexually

abused any children. The defendant was then arrested.

The State police search team seized numerous electronic

devices from the apartment, including the defendant's laptop and

desktop computers and his external hard drive.6 The hard drive

from the laptop computer contained the Ares program; a large

majority of files downloaded through the file-sharing feature of

the program contained terms associated with child pornography.

Six files in the shared folder were confirmed to contain child

6
The return of the search warrant lists seventeen entries.
Of these, eight entries appear to relate to computers or hard
drives, five appear to relate to data storage (flash drives and
compact discs), and four appear to relate to nonelectronic items
(notes, receipts, and packaging).
 9

pornography. The laptop and desktop computers and the external

hard drive revealed over one hundred files containing suspected

child pornography. An analyst employed by the Attorney General

previewed a sample of the video recordings on each device; the

samples contained child pornography. The devices were also

found to include one of the files Murphy had downloaded during

his Roundup Ares surveillance on March 12, 2012, and remnants of

the other.

c. Procedural history. On August 27, 2012, a grand jury

indicted the defendant on one count of possession of child

pornography with the intent to disseminate in violation of

§ 29B, one count of dissemination of child pornography in

violation of § 29B, and three counts of possession of child

pornography in violation of G. L. c. 272, § 29C. The defendant

filed a motion to suppress the electronic evidence seized from

the apartment as well as his statements. After a nonevidentiary

hearing, a judge in the Superior Court (motion judge) denied the

motion. The defendant was tried jury-waived before a different

Superior Court judge (trial judge) and was found guilty of all

charges. The Commonwealth moved for restitution for harm to a

victim, but the trial judge denied the motion without a hearing

and thereafter denied the Commonwealth's motion to reconsider.

The defendant filed a timely notice of appeal from his
 10

convictions, and the Commonwealth also filed a notice of appeal.7

We granted the defendant's application for direct appellate

review.

2. Discussion. a. Overbreadth of the search. The

defendant argues that the search warrant was impermissibly

overbroad, as to both places and "things" to be searched. It is

a given that under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights, probable cause, necessary for the issuance of a search

warrant, requires a substantial basis for concluding that the

items sought are related to the criminal activity under

investigation, and that they reasonably may be expected to be

located in the place to be searched at the time the search

warrant issues. Commonwealth v. Kaupp, 453 Mass. 102, 110

(2009), and cases cited. In addition, under the Fourth

Amendment, warrants must "particularly describ[e] the place to

be searched, and the persons or things to be seized," and art.

14 requires warrants to be "accompanied with a special

7
The defendant argues that the Commonwealth filed its
appeal one day late, and that the court therefore lacks
jurisdiction to entertain it. We agree with the Commonwealth
that the docket entries are not entirely clear, but assuming the
notice of appeal was filed one day late, we extend the time for
filing the Commonwealth's notice of appeal by one day pursuant
to Mass. R. A. P. 2, 365 Mass. 845 (1974), and Mass. R. A. P.
14 (b), as amended, 378 Mass. 939 (1979), and therefore treat
the Commonwealth's notice of appeal as timely filed.
 11

designation of the persons or objects of search, arrest, or

seizure." See G. L. c. 276, § 2 (search warrants "shall

particularly describe the property or articles to be searched

for"). By defining and limiting the scope of the search, these

constitutional and statutory particularity requirements prohibit

general warrants amounting to "exploratory rummaging in a

person's belongings." Coolidge v. New Hampshire, 403 U.S. 443,

467 (1971). See Commonwealth v. Pope, 354 Mass. 625, 629

(1968). A warrant lacking the requisite particularity may thus

be challenged as overbroad.

In reviewing a finding of probable cause, the affidavit

supporting the warrant should be interpreted "in a commonsense

and realistic fashion," and "read as a whole, not parsed,

severed, and subjected to hypercritical analysis" (citations

omitted). Kaupp, 453 Mass. at 111. An inference drawn from the

affidavit, "if not forbidden by some rule of law, need only be

reasonable and possible; it need not be necessary or

inescapable" (citation omitted). Id. A reviewing court gives

considerable deference to a magistrate's determination of

probable cause. Commonwealth v. Anthony, 451 Mass. 59, 69

(2008). Because such a determination is a conclusion of law,

however, we review it de novo. Commonwealth v. Foster, 471

Mass. 236, 242 (2015).
 12

i. Place to be searched. The defendant argues that where,

as here, the apartment was shared living space, a search warrant

for the entire apartment was overbroad. The Fourth Amendment

"protects people, not places" against unreasonable searches and

seizures, Katz v. United States, 389 U.S. 347, 351 (1967), but

just the same, warrants authorize the searches of particular

places, and do so properly wherever there is a sufficient nexus

between the items sought and the place to be searched.

Commonwealth v. McDermott, 448 Mass. 750, 768, cert. denied, 552

U.S. 910 (2007). That nexus may be based on the type of crime,

the nature of the missing items, the extent of the suspect's

opportunity for concealment, and normal inferences as to where a

criminal would be likely to hide evidence of the crime. Id.

"[T]he degree of specificity required when describing the goods

to be seized may necessarily vary according to the circumstances

and type of items involved." Commonwealth v. Freiberg, 405

Mass. 282, 298 (1989), cert. denied, 493 U.S. 940 (1989).

Here, the warrant established a sufficient nexus,

articulated with adequate particularity. The defendant argues

that the police "knew next to nothing of the people and

computing devices" inside the apartment to be searched. His

emphasis on people, however, is misguided where the warrant

appropriately substantiated a connection between the apartment

and the evidence of child pornography reasonably expected to be
 13

located therein. Zurcher v. Stanford Daily, 436 U.S. 547, 556 &

n.6 (1978) ("The critical element in a reasonable search is not

that the owner of the property is suspected of crime but that

there is reasonable cause to believe that the specific 'things'

to be searched for and seized are located on the property to

which entry is sought"). See Martinez, 476 Mass. at , .

It is true that the police were aware prior to the search

that the Verizon subscriber was not the apartment's sole

occupant: there were five names on the apartment's mailbox.

The search warrant, however, authorized a search of the location

associated with the IP address, not a search of any single

associated subscriber. Although IP addresses alone can be

unreliable indicators of location,8 they suffice when

corroborated by the Internet service provider (ISP), as occurred

here. See United States v. Grant, 218 F.3d 72, 75 (1st Cir.),

cert. denied, 531 U.S. 1025 (2000) (IP address corroborated by

ISP supported probable cause). That reliability may be further

strengthened by police surveillance, which here confirmed the

connection between the IP address and the physical location when

officers observed the ISP subscriber's name on the apartment's

8
See United States v. Vosburgh, 602 F.3d 512, 527 & n.14
(3d Cir. 2010), cert. denied, 563 U.S. 905 (2011)
(characterizing IP addresses as "fairly 'unique' identifiers,"
but cautioning that "there undoubtedly exists the possibility of
mischief and mistake"). See EFF, Unreliable Informants, supra
at 8-10.
 14

mailbox. See McLellan, 792 F.3d at 211 n.9, quoting United

States v. Gillman, 432 Fed. Appx. 513, 515 (6th Cir. 2011)

(finding sufficient nexus between illegality and defendant's

apartment where "(1) child pornography was transferred to police

from a specific IP address; (2) that IP address was registered

to the defendant's residential address; and (3) the defendant

actually lived at that address").9

The search was indeed limited to the apartment. Within the

apartment, however, the search was limited not to areas under

Delcid's exclusive control but rather to those associated with

the IP address. Cf. Commonwealth v. Dew, 443 Mass. 620, 626

(2005) (search warrant for entire multifamily home not overbroad

where defendant had access to all units). Just as evidence

could have been anywhere in an entire house to which the

defendant had access in Dew, so here could computer devices

using the monitored IP address be anywhere in the apartment.

9
Many Federal Circuit Courts of Appeals have held that a
corroborated IP address provides sufficient probable cause for a
search warrant of the associated physical address to issue. See
United States v. Chiaradio, 684 F.3d 265, 279 (1st Cir.), cert.
denied, 133 S. Ct. 589 (2012); United States v. Renigar, 613
F.3d 990, 991, 994 (10th Cir. 2010); Vosburgh, 602 F.3d at 526–
527; United States v. Stults, 575 F.3d 834, 843-844 (8th Cir.
2009), cert. denied, 559 U.S. 915 (2010); United States v.
Perrine, 518 F.3d 1196, 1205-1206 (10th Cir. 2008); United
States v. Pérez, 484 F.3d 735, 740 (5th Cir.), cert. denied, 552
U.S. 952 (2007); United States v. Wagers, 452 F.3d 534, 539 (6th
Cir.), cert. denied, 549 U.S. 1032 (2006); United States v. Hay,
231 F.3d 630, 635–636 (9th Cir. 2000), cert. denied, 534 U.S.
858 (2001).
 15

Where the defendant's unlocked bedroom showed no indicia of

separate ownership from the rest of the apartment, a search of

that bedroom as part of the physical address associated with the

IP address was proper.

ii. Things to be searched. Molina further contends that

the warrant was overbroad in allowing police to seize "all

computing devices found in the apartment regardless to whom they

belonged or where they may have been found." The argument

fails. The information available to the police was that

suspected child pornography was being sent and received through

a computer device connected to IP address 108.49.7.93 and that

that IP address was assigned to a subscriber at the apartment.

As discussed above, the warrant properly permitted a search of

the entire physical location associated with the target IP

address for any evidence (computers and related items) of child

pornography. Because that evidence, in the form of electronic

files, could be easily transferred between devices at the same

location, police need not have limited the devices to be

searched. See McDermott, 448 Mass. at 770 (warrant seeking

evidence of defendant's mental state not overbroad where police

"did not have information that would allow them further to limit
 16

the description of this category of items").10 Where evidence of

child pornography could thus have existed on any or all

electronic devices at the location associated with the target IP

address, the seizure of over a dozen electronic devices found in

the apartment did not exceed the warrant's scope.

iii. Minimization protocol. Although we conclude that

there was probable cause to justify the search of the apartment

in this case, the execution of the search warrant must itself

satisfy the "ultimate touchstone" of reasonableness. See

Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012), cert.

denied, 133 S. Ct. 945 (2013). The defendant does not squarely

10
See also United States v. Ivers, 430 Fed. Appx. 573, 575
(9th Cir.), cert. denied, 132 S. Ct. 337 (2011) (scope of
warrant proper where, although police could have provided more
specific description of items sought, they "had no way of
knowing where the images were stored" [citation omitted]);
United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999)
(warrant limiting search of entire home to "[a]ny and all
computer software and hardware, . . . computer disks, disk
drives . . . [a]nd any and all visual depictions, in any format
or media, of minors engaging in sexually explicit conduct"
sufficiently particular because search and seizure of computer
and all available disks was "narrowest definable [one]
reasonably likely to obtain images"); United States v. Clark,
524 F. Supp. 2d 896, 901 (W.D. Mich. 2006), aff'd, 257 Fed.
Appx. 991 (6th Cir. 2007), cert. denied, 555 U.S. 829 (2008)
(warrant limiting search of entire home in which defendant
rented room to "[c]hild pornography in any form including . . .
computer printed images," and limiting search of computer hard
drives and other storage media to "evidence . . . related to
child pornography," was as specific as it could have been, given
that defendant could have stored files containing child
pornography almost anywhere on his computer or other storage
media); United States v. Albert, 195 F. Supp. 2d 267, 276 (D.
Mass. 2002) (similar).
 17

challenge the scope or reasonableness of the search of his

electronic devices or his digital files once police had seized

the devices, nor does he suggest that police should be required

to develop and implement a minimization protocol to govern the

execution of any such digital search. We note, moreover, that

in this case the police and associated personnel conducting the

search promptly, and commendably, screened and excluded at least

Delcid's computer from further search or seizure; it also

appears that when the seized electronic devices were seized

thereafter, the personnel conducting the searches did so by

searching for file names containing terms commonly associated

with child pornography in order to preview only a limited sample

of files consistent with those terms.

On the record before us in this case, nothing indicates

that execution of the search in this case was unreasonable.

Nevertheless, the fact that the target apartment appeared to be

the residence of multiple individuals11 is significant. Where,

as the search warrant return in this case indicates, multiple

electronic devices that may well belong to multiple individuals

are seized and searched, the reasonableness of the undertaking

11
The police knew from the surveillance they conducted
before applying for the search warrant that the target apartment
had a mailbox with five different names on it, and when the
police entered the apartment, we infer that it was quite obvious
that more than Delcid and his family were living there.
 18

will be judged, at least in part, by whether the searches of

those devices are conducted in a manner that seeks to limit the

scope of the search as much as practicable in the particular

circumstances. In the future, we may consider whether to

require, as some courts have, a digital search protocol that

would affirmatively demonstrate "a high regard for rights of

privacy and take all measures reasonable to avoid unnecessary

intrusion." Commonwealth v. Vitello, 367 Mass. 224, 262 (1975).

Compare United States v. Galpin, 720 F.3d 436, 451 (2d Cir.

2013) (declining to require "specific search protocols or

minimization undertakings as basic predicates for upholding

digital search warrants"), with United States v. Comprehensive

Drug Testing, Inc., 621 F.3d 1162, 1176–1177 (9th Cir. 2010) (en

banc) (per curiam) (requiring minimization protocol).

In the McDermott case, we explained that no advance

approval was required for computer search methods because the

magistrate issuing the warrant "likely does not have the

technical expertise to assess the propriety of a particular

forensic analysis." McDermott, 448 Mass. at 776. It is for

precisely this reason, however, that additional guidance at the

present time would be very useful concerning ways that those

conducting digital searches can minimize intrusions into the

private electronic files of individuals who may have no

connection at all with the child pornography or other suspected
 19

criminal activity being investigated. Nearly a decade's worth

of technological advancements have taken place since this court

decided McDermott, and as was clear at oral argument in this

case, we are concerned about the lack of protocols or formal

guidelines for executing search warrants for digital evidence.

Cf. Kerr, Executing Warrants for Digital Evidence: The Case for

Use Restrictions on Nonresponsive Data, 48 Tex. Tech. L. Rev. 1,

17-18 (2015) ("The best way to minimize the unwarranted

intrusions upon privacy for computer searches is to impose use

restrictions on the nonresponsive data revealed in the course of

the search"). The Attorney General's existing digital evidence

guide offers helpful parameters,12 and we invite the Attorney

General to develop further guidance for the conduct of digital

searches that could be made available to both State and local

officers conducting digital searches.

b. Administrative subpoena. Pursuant to G. L. c. 271,

§ 17B (§ 17B), a district attorney may issue an administrative

subpoena for the records of an ISP "whenever [he or she] has

reasonable grounds to believe that [those records] are relevant

and material to an ongoing criminal investigation." This

statute is to be read in conjunction with the Federal Stored

12
See Office of the Attorney General, Massachusetts Digital
Evidence Guide (June 9, 2015), available at
http://www.mass.gov/ago/docs/cybercrime/ma-digital-evidence-
guide.pdf [https://perma.cc/C9XJ-NAYC].
 20

Communications Act (SCA), 18 U.S.C. §§ 2701-2711 (2012). See

G. L. c. 271, § 17B (permitting subpoenas "[e]xcept as otherwise

prohibited under [18 U.S.C. § 2703]"). The SCA requires

subpoenaed providers to disclose a subscriber's name, address,

telephone connection records (including session times and

durations), length and type of service, network address, and

payment source. 18 U.S.C. § 2703(c)(2).

The defendant challenges the validity of the administrative

subpoena sent by the district attorney to Verizon in this case,

arguing that it could only be sent if supported by probable

cause, and that the § 17B standard requiring only a showing that

the records sought are "relevant and material to an ongoing

criminal investigation" was constitutionally insufficient.

Accordingly, he claims, because the administrative subpoena was

invalid, the invalidity applied as well to the search warrant

because probable cause for it was supported in part by

information obtained through this subpoena, requiring the

reversal of his conviction.

Assuming, without deciding, that the defendant has standing

to challenge the administrative subpoena for Delcid's Verizon

subscriber records, we reject the defendant's contention that

the issuance of such a subpoena requires probable cause.

Previous decisions of this court have reviewed and upheld the

constitutional validity of the "relevant and material" standard
 21

contained in § 17B, at least as applied to certain types of

telephone records. See Commonwealth v. Vinnie, 428 Mass. 161,

178, cert. denied, 525 U.S. 1007 (1998), adopting reasoning of

Commonwealth v. Feodoroff, 43 Mass. App. Ct. 725, 729-730

(1997). Section 17B specifically prohibits disclosure of the

contents of subscriber communications, including Internet

browser history. G. L. c. 271, § 17B.13 Here, however, the

subscriber information reveals substantially less than the

telephone records we have said permissibly could be subpoenaed.

See Commonwealth v. Chamberlin, 473 Mass. 653, 658 (2016);

Vinnie, supra. At least on the facts of this case, we continue

to think that for the limited scope of information obtained

pursuant to § 17B, the requirements of art. 14 were satisfied by

the statute's requirement that the requestor have reasonable

grounds to believe the records are relevant and material to an

ongoing criminal investigation.

Because we have rejected the defendant's challenges to the

search warrant -- the overbreadth challenge as well as the

13
Specifically, the relevant text of G. L. c. 271, § 17B,
provides: "No subpoena issued pursuant to this section shall
demand records that disclose the content of electronic
communications or subscriber account records disclosing internet
locations which have been accessed including, but not limited
to, websites, chat channels and newsgroups, but excluding
servers used to initially access the internet. No recipient of
a subpoena issued pursuant to this section shall provide any
such content or records accessed, in response to such subpoena."
 22

challenge to the supporting information obtained through the

§ 17B administrative warrant -- we affirm the motion judge's

order denying the defendant's motion to suppress evidence

obtained in the search of the apartment.14

c. G. L. c. 272, § 29B: proof of lascivious intent

requirement. Molina contests the sufficiency of the evidence

supporting his conviction of possession of child pornography

with the intent to disseminate under § 29B (b). He argues that

the Commonwealth failed to prove that he had the lascivious

intent he claims is required to be proved as an element of the

crime. The Commonwealth responds that proof of lascivious

intent is not necessary to convict a defendant of possession

with intent to disseminate under § 29B (b), but that in any

event there was proof of lascivious intent, and indeed proof of

all the elements of the crime of possession with intent to

disseminate. We agree with Molina that lascivious intent must

be proved to establish any violation of § 29B, including in

particular possession of child pornography with intent to

14
For the same reason, we also affirm the motion judge's
denial of the defendant's motion to suppress his statements to
State police Lieutenant Steven Fennessy and other police
officers as inadmissible fruit of the poisonous tree under Wong
Sun v. United States, 371 U.S. 471, 486 (1963). See, e.g.,
Commonwealth v. Estabrook, 472 Mass. 852, 860-864 (2015) (only
statements resulting from exploitation of illegally obtained
evidence need be suppressed).
 23

disseminate under § 29B (b), but we disagree that the evidence

was insufficient to do so here.

Section 29B has two subsections, the first of which,

§ 29B (a), focuses on child pornography depicting child nudity,

and the second of which, § 29B (b), addresses child pornography

depicting children engaging in sexual conduct. Each subsection

punishes both acts of dissemination as well as possession with

intent to disseminate. Sections 29B (a) and (b) provide in

relevant part as follows:

"(a) Whoever, with lascivious intent, disseminates any
visual material that contains a representation or
reproduction of any posture or exhibition in a state of
nudity involving the use of a child who is under eighteen
years of age, knowing the contents of such visual material
or having sufficient facts in his possession to have
knowledge of the contents thereof, or has in his possession
any such visual material knowing the contents or having
sufficient facts in his possession to have knowledge of the
contents thereof, with the intent to disseminate the same,
shall be punished . . . .

"(b) Whoever with lascivious intent disseminates any
visual material that contains a representation or
reproduction of any act that depicts, describes, or
represents sexual conduct participated or engaged in by a
child who is under eighteen years of age, knowing the
contents of such visual material or having sufficient facts
in his possession to have knowledge of the contents
thereof, or whoever has in his possession any such visual
material, with the intent to disseminate the same, shall be
punished . . . ." (Emphases added.)

As used in § 29B, the term "lascivious intent" is defined

in G. L. c. 272, § 31, to mean "a state of mind in which the

sexual gratification or arousal of any person is an objective."
 24

G. L. c. 272, § 31.15 The Commonwealth agrees with the defendant

that both types of conduct proscribed by § 29B (a) and the

actual dissemination proscribed by § 29B (b) require lascivious

intent, but the Commonwealth disputes that the possession with

the intent to disseminate prohibited by § 29B (b) does so. In

the Commonwealth's view, the lascivious intent required for

15
The full definition of "lascivious intent" in G. L.
c. 272, § 31, is the following:

"'Lascivious intent,' a state of mind in which the
sexual gratification or arousal of any person is an
objective. For the purposes of prosecution under this
chapter, proof of lascivious intent may include, but shall
not be limited to, the following:

"(1) whether the circumstances include sexual
behavior, sexual relations, infamous conduct of a lustful
or obscene nature, deviation from accepted customs and
manners, or sexually oriented displays;

"(2) whether the focal point of a visual depiction is
the child's genitalia, pubic area, or breast area of a
female child;

"(3) whether the setting or pose of a visual depiction
is generally associated with sexual activity;

"(4) whether the child is depicted in an unnatural
pose or inappropriate attire, considering the child's age;

"(5) whether the depiction denotes sexual
suggestiveness or a willingness to engage in sexual
activity;

"(6) whether the depiction is of a child engaging in
or being engaged in sexual conduct, including, but not
limited to, sexual intercourse, unnatural sexual
intercourse, bestiality, masturbation, sado-masochistic
behavior, or lewd exhibition of the genitals."
 25

actual dissemination in the first "whoever" clause of § 29B (b)

does not also modify the second "whoever" clause that describes

possession with the intent to disseminate, with the result that,

in contrast to § 29B (a), possession with the intent to

disseminate under § 29B (b) does not require proof of lascivious

intent to establish the crime.16

We are not persuaded that such a distinction between the

two subsections can properly rest on the presence of a second

"whoever" in § 29B (b), and the absence of two commas. In

Commonwealth v. Dingle, 73 Mass. App. Ct. 274, 279 (2008), the

Appeals Court, reviewing the legislative history of the statute,

interpreted § 29B (a) and (b) as "describ[ing] different means

of committing the same offense." We agree, and based on the

same legislative history, conclude that the lascivious intent

requirement applies to all four means of violating the statute

contained in the two subsections.

16
In particular, the Commonwealth asserts that, in
§ 29B (a), the lascivious intent requirement is set off by
commas and clearly modifies the entire subsection to reach both
dissemination and possession with the intent to disseminate
visual material depicting child nudity, but in § 29B (b), the
absence of commas around the lascivious intent requirement and
the presence of a second "whoever" indicates that the lascivious
intent requirement was only intended to apply to dissemination
of depictions of child sexual acts, and not to possession with
the intent to disseminate this type of visual material.
 26

Section 29B was originally enacted in 1977. See St. 1977,

c. 917, § 2. In its original version, the statute did not have

separate subsections, and provided in relevant part:

"Whoever disseminates any visual material that
contains a representation or reproduction of any posture or
exhibition in a state of nudity or of any act that depicts,
describes, or represents sexual conduct participated or
engaged in by a child who is under eighteen years of age,
knowing the contents of such visual material or having
sufficient facts in his possession to have knowledge of the
contents thereof, or whoever has in his possession any such
visual material knowing the contents or having sufficient
facts in his possession to have knowledge of the contents
thereof, with the intent to disseminate the same, shall be
punished . . . ." (Emphases added.)

Id. As this quoted language indicates, the statute combined the

four means of committing the crime -- dissemination of visual

material depicting child nudity, dissemination of visual

material depicting child sexual acts, and possession with the

intent to disseminate both types of pornographic visual material

-- in a single section, and there was no lascivious intent

requirement for any of these means. In 1988, this court struck

down a statute closely related to § 29B, G. L. c. 272, § 29A,17

as unconstitutionally overbroad under the First Amendment to the

United States Constitution. Commonwealth v. Oakes, 401 Mass.

602, 603 (1988), vacated by 491 U.S. 576 (1989). In response,

17
General Laws c. 272, § 29A, concerns the production of
visual material depicting children in a state of nudity or
engaged in sexual conduct, whereas § 29B relates to the
dissemination of such material (or possession with the intent to
disseminate).
 27

the Attorney General presented to the Legislature proposed

amendments to both §§ 29A and 29B that, among other things,

separated each section into separate subsections, and added a

lascivious intent requirement to § 29A (a) and also to § 29B (a)

and (b). See St. 1988, c. 226, §§ 1, 2. It is clear from the

submissions of the Attorney General that the goal was to correct

the constitutional overbreadth infirmity that this court in

Oakes found to invalidate § 29A by adding a lascivious intent

requirement not only to what became § 29A (a), but also to

§ 29B (a) and (b). See Memorandum from Assistant Attorney

General Lila Heideman to Sen. Paul Harold and Rep. James Brett

(June 21, 1988) (on file with Committee on Criminal Justice)

(Heideman memorandum). See also Dingle, 73 Mass. App. Ct. at

280-282. The Legislature enacted the amendments proposed by the

Attorney General with essentially no substantive changes. See

St. 1988, c. 226, § 2; Heideman memorandum, supra. The

Commonwealth makes much of the second "whoever" in § 29B (b) and

the absence of the same in § 29B (a). However, a second

"whoever" existed in the originally enacted, single-section

version of § 29B, before the addition of the lascivious intent

requirement to it, and the legislative history contains nothing

to indicate that the continued presence of a second "whoever" in

§ 29B (b) but absence in § 29B (a) reflected an intentional

decision to distinguish between the two subsections in order to
 28

ensure that lascivious intent was not required for possession

with the intent to disseminate child pornography depicting child

sexual acts. Rather, the legislative history suggests the

opposite -- that is, as stated previously, an intent on the part

of the drafters of the 1988 amendment to ensure that lascivious

intent was an element of all aspects of § 29B (a) and (b).18

Moreover, to construe § 29B (b) as imposing a proof of

lascivious intent requirement in relation to the more serious

and harmful act of actual dissemination, but not to the act of

possession with the intent to disseminate, seems illogical. See

Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374,

375-376 (2000). In sum, we construe § 29B to require proof of

lascivious intent with respect to all four means of committing

the crime, including possession with the intent to disseminate

visual material depicting a child engaged in a sexual act under

§ 29B (b).19,20

18
This is in contrast to G. L. c. 272, § 29A, where the
lascivious intent requirement applies solely to § 29A (a) (child
nudity) but is not mentioned in § 29A (b) (child engaged in
sexual act).
19
We note, as the trial judge did, that both indictments
charging the defendant with violating § 29B included a reference
to lascivious intent -- that is, the indictment charging the
defendant with dissemination of child pornography under
§ 29B (a), as well as the separate one charging possession with
the intent to disseminate under § 29B (b).
 29

d. Sufficiency of the evidence. The defendant argues that

there was insufficient evidence to support his convictions of

dissemination of child pornography and possession of child

pornography with the intent to disseminate under § 29B (a) and

(b), respectively. This argument fails. For both of the § 29B

charges, the disputed elements of the offenses boil down to

whether there was sufficient evidence of (1) lascivious intent;

and (2) dissemination or possession with the intent to

disseminate. Our review of the trial record persuades us that

there was sufficient evidence to prove beyond a reasonable doubt

each element of each § 29B charge.

i. Evidence of lascivious intent. The evidence in this

case showed that the defendant was downloading and uploading --

i.e., sharing -- files containing children "exhibit[ed] in a

20
In Commonwealth v. LeBlanc, 475 Mass. 820, 822 (2016), we
considered the significance of seven separate "whoever" clauses
in G. L. c. 90, § 24 (2) (a), a subsection of the statute
prohibiting operation of a motor vehicle while under the
influence of intoxicants. The specific question in that case
was whether language in the first "whoever" clause requiring
proof that the defendant was operating on a "public way" should
be understood also to apply the same "public way" requirement to
each of the other "whoever" clauses; we concluded that the
"public way" requirement did not apply to the other clauses.
Id. Section 29B (b) is very different in structure and subject
matter from the statute at issue in the LeBlanc case. It is
also significant that in contrast to the history of § 29B (b),
the legislative history of the statute in LeBlanc did not offer
support for a construction that would apply a public way
requirement to all the "whoever" clauses, and the statute made
better sense if the public way requirement did not apply to all
of the other "whoever" clauses.
 30

state of nudity" who were "engaging in or being engaged in

sexual conduct" that included one or more of the acts ("sexual

intercourse, unnatural sexual intercourse, bestiality,

masturbation, sado-masochistic behavior, or lewd exhibition of

the genitals") described in the definition of "lascivious

intent" set out in G. L. c. 272, § 31. See note 16, supra.

Given that "lascivious intent" requires proof of "a state of

mind in which the sexual gratification or arousal of any person

is an objective" (emphasis added), id., we agree with the trial

judge that the evidence permitted the reasonable inference that

the defendant had his own sexual gratification as an objective

in downloading and sharing depictions of children in various

states of nudity engaged in sexual conduct, and that this

permissible inference sufficed to permit the judge, as the fact

finder, reasonably to find proved beyond a reasonable doubt

lascivious intent in relation to both the dissemination charge

under § 29B (a) (pornography depicting child nudity) and the

possession with the intent to disseminate charge under § 29B (b)

(pornography depicting a child engaged in sexual conduct).

ii. Evidence of dissemination and of possession with

intent to disseminate. The defendant argues that the evidence

on dissemination showed only that he had failed to take any

steps to change the default download folder from the "My Shared

Folder" to one that was not shared with other Ares program
 31

users, and that this evidence was insufficient to support a

conviction for actual dissemination with lascivious intent. The

trial judge reasoned that the file-sharing program, displaying

simultaneous downloads and uploads, and explicitly identified as

such on the Ares program screen on the defendant's computer,

provided sufficient evidence to prove the dissemination charge

under § 29B (a). We agree. "When an individual consciously

makes files available for others to take and those files are in

fact taken, [knowing] distribution has occurred. The fact that

the defendant did not actively elect to transmit those files is

irrelevant." United States v. Chiaradio, 684 F.3d 265, 282 (1st

Cir.), cert. denied, 133 S. Ct. 589 (2012).

The same evidence reflecting the actual file-sharing

activity on the defendant's computer also was sufficient to

prove the charge of possession with the intent to disseminate:

in order to disseminate these files containing child

pornography, by definition the defendant first had to possess

these files, and the file-sharing activity reflects an intent to

disseminate.

e. Restitution. The Commonwealth appeals with respect to

the denial of its request for a hearing on its motion for

restitution. The trial judge based his denial of the request

and related denial of the motion for reconsideration on the

ground that a hearing on the motion was a necessary prerequisite
 32

to the motion's allowance, and the defendant's right to due

process required that, at such a hearing, the victim identified

by the Commonwealth, referred to by the pseudonym "Vicky,"

appear and testify. We disagree, and accordingly remand for a

hearing at which the victim need not appear.

The relevant background facts are these. Following the

judge's finding of the defendant to be guilty of all charges,

the Commonwealth requested that as a component of his sentence,

the defendant be required to make restitution to Vicky, a victim

of some of the child pornography in the defendant's possession,21

and requested a hearing to establish the amount of restitution.

In support of its motion, the Commonwealth filed a memorandum

accompanied by exhibits, including a sworn victim impact

statement signed by Vicky, psychological evaluations, and an

economic analysis of lost wages. The judge agreed with the

Commonwealth that Vicky qualified as a victim of the defendant's

crimes who might be eligible for restitution, but declined to

hold a restitution hearing because he found that to do so would

require the victim's presence, and he wanted to spare her that

21
The Commonwealth states in its brief that "Vicky" is the
pseudonym given to the child depicted in some of the defendant's
computer files of child pornography. The defendant does not
dispute this statement. The Commonwealth also states, again
without dispute by the defendant, that Vicky does not live in
the Commonwealth.
 33

experience.22 The judge appeared to have concluded that this

court's decision in Commonwealth v. Denehy, 466 Mass. 723, 740

(2014), made Vicky's appearance mandatory.23

A judge unquestionably has the power to order restitution

as a condition of probation. See Denehy, 466 Mass. at 737, and

cases cited. In a case where restitution is sought, if the

defendant does not stipulate to the restitution amount, the

judge should conduct an evidentiary hearing, at which the victim

may testify regarding the amount of the loss. Commonwealth v.

Henry, 475 Mass. 117, 120 (2016). A restitution hearing "need

not be elaborate," but must be "reasonable and fair."

Commonwealth v. Nawn, 394 Mass. 1, 7 (1985). The opportunity to

22
Specifically, the judge stated: "A restitution hearing
is required; and where a restitution hearing is required, in
circumstances like this, I'm not going to order restitution.
I'm not doing it because I would not require Vicky to appear in
this courtroom to testify." His written denial of the motion
noted, "Restitution would require a hearing at which 'Vicky'
would be required to appear. . . . The [c]ourt will not subject
Vicky to that process." Thereafter, in denying the
Commonwealth's motion for reconsideration, the judge stated that
he "remain[ed] persuaded that any restitution order in the
present case would require an evidentiary hearing at which the
[d]efendant would be entitled to cross-examine Vicky regarding
her claimed damages."
23
In Commonwealth v. Denehy, 466 Mass. 723, 740 (2014), we
stated that with respect to restitution, "[t]he Commonwealth
bears the burden of proving both a causal connection and the
amount of the loss by a preponderance of the evidence. . . . A
'unilateral statement' from the victim or, as here, from the
assistant district attorney about the amount owed may be
insufficient to meet this burden" (citations omitted).
 34

cross-examine witnesses is one, but by no means the only,

measure of such fairness. See Commonwealth v. Casanova, 65

Mass. App. Ct. 750, 755-756 (2006) (hearsay, if reliable, is

admissible to carry Commonwealth's burden at restitution

hearing). The hearing must be flexible in nature, and all

reliable evidence should be considered. See id. (restitution

process "should be flexible enough to consider evidence

including letters, affidavits, and other material that would not

be admissible in an adversary criminal trial" [citation

omitted]).

An order to pay restitution forms part of a criminal

sentence that includes probation, but a hearing on restitution

shares some common features with a probation revocation

proceeding. See Casanova, 65 Mass. App. Ct. at 755-756. In the

probation revocation context, strict evidentiary rules are not

imposed, see Commonwealth v. Durling, 407 Mass. 108, 114 (1990),

and the same is true of restitution hearings. See Casanova,

supra at 755. More relevant to the issue raised in the present

case, however, is the point that in a probation revocation

hearing, although a defendant has a presumptive right to call

witnesses, that presumption may be overcome by countervailing

interests. See Commonwealth v. Hartfield, 474 Mass. 474, 481

(2016). In particular, in determining whether the

countervailing interests overcome the presumption after
 35

considering the totality of the circumstances, the judge

conducting a restitution hearing should consider whether, based

on an individualized assessment of the proposed witness, there

is an unacceptable risk that the witness's physical,

psychological, or emotional health would be significantly

jeopardized if the witness were required to testify in court at

the probation hearing. See id.

These same considerations are relevant to a restitution

hearing, and they support the conclusion that in the restitution

context a trial judge possesses the discretionary authority not

to require a victim such as Vicky to appear as a witness, and

specifically to preclude the defendant from calling her, if the

judge were to find, based on the record before him, that the

interest in insulating the victim from further trauma overcomes

the defendant's presumptive right to call her.24 If a judge

makes such a determination of unavailability, this does not

require denial of a request for a hearing on a motion for

restitution. Nor does such a determination of unavailability

mean that the defendant, after hearing, could not be ordered to

make restitution payments on the victim's behalf. "'[T]he right

to confront adverse witnesses and the right to present a defense

24
Cf. Kearney, 672 F.3d at 99-101 (Federal child
pornography prosecution; court affirmed trial judge's award of
restitution to Vicky without requiring her appearance).
 36

are distinct due process rights separately guaranteed to

probationers' and should not be conflated." See Hartfield, 474

Mass. at 479, quoting Commonwealth v. Kelsey, 464 Mass. 315, 327

n.12 (2013). If there is "good cause" for the Commonwealth not

to call a witness with personal knowledge to testify but to

offer instead reliable hearsay or other evidence to establish

the basis for its request for restitution, the requirements of

due process are likely to be satisfied. Cf. Durling, 407 Mass.

at 115, 118-119 (because probationer's liberty interest is

conditional, so too is probationer's right to confront

witnesses, and that right can be denied for "good cause"). Cf.

also Rule 7(b) of District/Municipal Courts Rules for Probation

Violation Proceedings, Mass. Rules of Court, at 742 (Thomson

Reuters 2016).

We emphasize a point previously made: a hearing on a

request for restitution is necessary if the basis for the

request or the amount of restitution to be ordered is in

dispute. This follows from the fact that the purpose of

restitution is to compensate the injured party for losses

incurred as a result of the defendant's criminal conduct. See

Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001).

Accordingly, the Commonwealth must prove that the defendant

caused harm to the victim, and the payment of restitution is

limited to the economic losses caused by the conduct of the
 37

defendant and documented by the victim. Id., citing G. L.

c. 258B, § 3 (o). See Nawn, 394 Mass. at 7-8 (amount must be

subject to proof of economic loss). The amount of restitution

the victim has received in other cases may thus properly be

considered in determining to what extent she has already been

compensated for her losses. See United States v. Gamble, 709

F.3d 541, 553 (6th Cir. 2013). Here, both the Commonwealth and

the defendant requested a hearing on restitution. The

reliability of the Commonwealth's proffered hearsay evidence and

restitution amount was disputed, and a hearing should have been

held.

3. Conclusion. The judgments of convictions are affirmed.

The denial of the Commonwealth's request for a hearing on its

motion for restitution is vacated, and the case is remanded to

the Superior Court for further proceedings, and specifically a

restitution hearing, consistent with this opinion.

So ordered.