Multiplicity, EP2P and Child Pornography

David Chiaradio was indicted on two counts of possessing child pornography in violation of 18 U.S. Code § 2252(a)(4)(B) and one count of distributing it in violation of 18 U.S. Code § § 2252(a)(2).  U.S. v. Chiaradio, __ F.3d __, 2012 WL 2821892 (U.S. Court of Appeals for the 1st Circuit 2012).  After a jury found him “guilty across the board”, the judge imposed “concurrent 97-month incarcerative” sentences “on each count of conviction.”  U.S. v. Chiaradio, supra.  Chiaradio appealed.  U.S. v. Chiaradio, supra.  

Chiaradio raised a number of arguments on appeal, but we’re only concerned with two of them, the first of which went to “the government’s decision to charge him with two counts of possessing child pornography” in violation of 18 U.S. Code § 2242(a)(4)(B).  U.S. v. Chiaradio, supra.  Chiaradio argued that the charges were multiplicitous, i.e., that the prosecution was essentially "doubling up" on the charges. U.S. v. Chiaradio, supra.  

As I explained in a post I did several years ago, criminal charges are based on the premise that each “charge” – which usually translates into a “count” in an indictment or other charging document – is based on the commission of one “crime.”  As I noted in another post, a defendant can challenge a charge if he believes it violates this premise.  As § 919 of the U.S. Department of Justice’s Criminal Resource Manual notes, multiplicity is “the charging of a single offense in several counts.” And as this court explained, a charge is multiplicitous when the prosecution charges a defendant twice for a single crime.

Determining whether an indictment is multiplicitous requires an inquiring court to examine whether a particular course of illegal conduct constitutes one or multiple offenses. . . . 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. 

U.S. v. Chiaradio, supra.  

To understand Chiaradio’s argument, you need to understand how the case arose. On February 28, 2006, FBI Agent Cecchini went online to search for child pornography, using a version of the peer-to-peer file-sharing program known as LimeWire.  U.S. v. Chiaradio, supra.  He actually used “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.”   U.S. v. Chiaradio, supra. 

The opinion notes that EP2P differs from the commercially available version of the software in “three principal respects”:

First, when a user of the commercially available version . . .  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 an agent can easily compare the hash value (essentially, the digital fingerprint) of an available file with the hash values of confirmed videos and images of child pornography. Taken together, these three modifications permit agents to download a file from a single source, learn the general location of the source, and facilitate the identification of child pornography as such.

U.S. v. Chiaradio, supra.  We’ll come back to EP2P later in this post.

Cecchini used EP2P to run a search for a term he knew was “fancied by collectors of child pornography” and got a number of hits, one of which came “from an IP address in Rhode Island.”  U.S. v. Chiaradio, supra.  Cecchini used LimeWire’s browse function to review the files being shared by that IP address, and found “643 files with titles suggestive of child pornography.”  U.S. v. Chiaradio, supra. 

He downloaded three of them, confirmed they contained child pornography, used a subpoena to the ISP to get the IP address and traced it to “a residence in Westerly, Rhode Island, owned by” Chiaradio’s father.  U.S. v. Chiaradio, supra.  Another Agent, Agent Yesnowski, used this information to obtain a warrant to search the residence.  U.S. v. Chiaradio, supra.

On August 22, 2006, Yesnowski and Agent Kohn executed the warrant, seizing a laptop from Chiaradio’s bedroom and a desktop computer from a spare bedroom.  U.S. v. Chiaradio, supra.  Chiaradio took responsibility for both computers and agreed to speak with the

agents about his computer usage. He explained the house had a shared wireless network connecting both computers to the Internet, as well as its own internal file-sharing system enabling a user of one computer to access data and files on the other. . . . [He] admitted installing and using LimeWire on the laptop to download music but denied he had ever searched for, or downloaded, child pornography.

U.S. v. Chiaradio, supra.  Analysis revealed “over 5,000 images and videos” of child pornography on the desktop and “nearly 2,000” on the laptop. U.S. v. Chiaradio, supra.

That brings us back to multiplicity.  Section 2252(a)(4)(B) makes it a crime to knowingly possess “one or more books, . . . , video tapes, or other matter” which contains “any visual depiction” that has traveled in or was produced by materials that traveled in interstate commerce if producing it involves the use of a minor engaging in sexually explicit conduct and the depiction “is of such conduct.” 18 U.S. Code § 2252(a)(4)(B). The opinion then explains that in this case, the government seized a “plethora” of

files during a single search of a single dwelling, yet charged [Chiaradio] with two counts of . . . possession. The government defends its use of dual counts . . . 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, [Chiaradio’s] utilization of two computers . . . exposed him to prosecution for two separate crimes. This is especially fitting, the government suggests, because the computers were in different rooms and had different functions: the laptop was used for acquiring the pornographic images, whereas the desktop was used for storing them.

           

U.S. v. Chiaradio, supra (emphasis in the original).

Chiaradio argued that since the statute specifically outlaws the possession of one or more “container[s]” of child pornography, it therefore criminalizes the possession of

`one or more’ computers containing offending images. It follows, [he] 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, [Chiaradio] suggests, because the computers were linked (that is, they shared an internal network through which files could freely move back and forth) and their contents overlapped (albeit to an unspecified degree).

U.S. v. Chiaradio, supra.

After reviewing the statute’s legislative history and decisions from two other Courts of Appeals, the 1^st Circuit agreed with Chiaradio.  U.S. v. Chiaradio, supra.  It held that one “who simultaneously possesses a multitude of forbidden images at a single time and in a single place” commits only one act of possession in violation of . . . § 2252(a)(4)(B).  U.S. v. Chiaradio, supra. It also held, therefore, that Chiaradio’s two convictions violated his right to be free from double jeopardy.  U.S. v. Chiaradio, supra.

The court then took up Chiaradio’s argument that the district court judge “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).”  U.S. v. Chiaradio, supra. Chiaradio claimed he was entitled to the code as part of the discovery – the process by which the prosecution and defense can gain access to evidence the other intends to use at trial – allowed by Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure. U.S. v. Chiaradio, supra.

Rule 16(a)(1)(E) “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.”  U.S. v. Chiaradio, supra. The court noted it reviews a district court judge’s rulings under Rule 16 for “abuse of discretion”, and if it finds an error, the error will not require reversing a conviction unless the defendant can show he was prejudiced by it.  U.S. v. Chiaradio, supra. 

When Chiaradio sought access to the code prior to his trial, he argued that “he had to obtain the source code in order to determine whether he could credibly challenge the reliability of the technology and block the expert testimony proffered by the government on the EP2P program and how it implicated”.  U.S. v. Chiaradio, supra.  Chiaradio, therefore, wanted to see if he could raise a Daubert challenge to EP2P.  In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court held that before a trial judge can allow an expert to testify about scientific knowledge, he or she must determine that the expert’s testimony is sound, i.e., is scientifically valid. 

The Court of Appeals noted that the FBI “developed EP2P as an investigatory tool” and its source code is “closely held; it is not shared with or accessible to the agents who use the program, let alone the public.” U.S. v. Chiaradio, supra. It also noted that the district court judge held an evidentiary hearing on Chiaradio’s motion.  U.S. v. Chiaradio, supra.  At the hearing, the judge heard testimony from FBI Agent P. Michael Gordon,

the government's proposed EP2P expert. Gordon had been involved in testing the program, had instructed other agents about its use, and had 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 the files transferred had come from the location identified through EP2P. He vouchsafed that, in his wide experience, no EP2P investigation had ever yielded a false positive.

U.S. v. Chiaradio, supra. 

The district court judge found that Gordon’s testimony satisfied the Daubert standard, i.e., established the scientific reliability of the software.  U.S. v. Chiaradio, supra. And the Court of Appeals agreed:

Even if the source code were discoverable under Rule 16 -- a matter on which we take no view – [Chiaradio] cannot demonstrate prejudice from its nondisclosure. The government gave [him] a digital file recording the transfer from [his] laptop to Cecchini's computer. 

It also gave [him] 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 Cecchini came from [Chiaradio’s] computer.

[He] neither contradicted nor cast the slightest doubt upon this testimony. This evidence makes it pellucid that the forbidden files were located on [Chiaradio’s] computers and transferred to Cecchini. Consequently, any error in the application of the EP2P program was harmless.

U.S. v. Chiaradio, supra. Since the court would not reverse the conviction unless any error involving the use of the EP2P program prejudiced Chiaradio’s ability to defend himself, and since the court found that the error, if any existed, was harmless, it rejected Chiaradio’s argument on this issue. U.S. v. Chiaradio, supra. 

The court therefore remanded the case to the district court judge to address the multiplicity problem, either by “merg[ing] the two possession counts or vacat[ing] the conviction and sentence on one of them.”  U.S. v. Chiaradio, supra.