United States v. Chiaradio

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).

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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

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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,

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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)).

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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.

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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).

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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

-23-
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,

-24-
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.

-25-
 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

-29-
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

-32-
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 —

-33-
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).

-35-
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.

-40-