United States v. Chiaradio, 2012 U.S. App. LEXIS 14206

Defendant David Chiaradio was convicted by a jury of two counts of possessing child pornography and one count of distributing it, based largely on FBI undercover EP2P (enhanced LimeWire) evidence and materials seized from two linked computers in his Rhode Island home.
Agent Cecchini used EP2P to search for child pornography, locating thousands of files from an IP address traced to the defendant’s residence.
A search warrant was obtained and executed on August 22, 2006, resulting in seizures of a laptop and a desktop computer; the defendant admitted to using LimeWire for music but denied searching for or downloading child pornography.
Forensic analysis found thousands of images/videos of child pornography on both computers with some overlap; the two computers were connected via a shared network and internal file-sharing system.
The district court calculated a guideline range of 210–262 months and sentenced concurrently to 97 months on each count, plus supervised release and restitution payments; the conviction and sentence followed on appeal.
The First Circuit split on multiplicity, ultimately remanding for consideration of whether the two possession counts should be merged or one vacated, while affirming the distribution conviction and several other rulings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Multiplicity under § 2252(a)(4)(B)	Government supposes multiple offenses based on two computers.	Possession of multiple ‘matters’ in one home should yield a single offense.	Remand for possible merger or vacatur; multiplicity issue unresolved here.
Discovery: source code of EP2P	Prosecution must disclose source code under Rule 16(a)(1)(E).	Lack of disclosure hamstrings Daubert-based challenges to EP2P reliability.	District court acted within discretion; no reversible prejudice from nondisclosure.
Suppression: probable cause for EP2P warrant	Affidavit inadequately demonstrates EP2P reliability.	EP2P reliability insufficient to support probable cause to search.	Probable cause supported by totality of circumstances; warrant valid.
Jury instructions: lesser included offense	Possession should be a lesser included offense of distribution.	Lesser-included instruction warranted given element overlap.	No error; possession not a necessary element of distribution; instructions adequate.
Restitution under § 2259	Victims’ losses caused by defendant’s actions should be recoverable.	Causation and proximate cause contested or limited.	Proximate causation established; restitution affirmed.

United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009) (one-conviction principle for simultaneous possession of multiple files in linked drives)
United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995) (statutory unit of prosecution; three vs one item distinction)
United States v. LeMoure, 474 F.3d 37 (1st Cir. 2007) (multiplicity and unit-of-prosecution considerations)
United States v. Pires, 642 F.3d 1 (1st Cir. 2011) (legislative intent governs unit of prosecution; “one or more” interpretation)
United States v. Planck, 493 F.3d 501 (5th Cir. 2007) (possession/trafficking related to multiple drives or files discussion)
United States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007) (passive distribution on peer-to-peer networks analogue to distribution)
United States v. Schales, 546 F.3d 965 (9th Cir. 2008) (context on possession of multiple mediums influencing charges)
United States v. Hinkeldey, 626 F.3d 1010 (8th Cir. 2010) (distinguishing ‘any’ vs ‘one or more’ in possession statutes)
United States v. Innarelli, 524 F.3d 286 (1st Cir. 2008) (provision of restitution and proximate causation framework)
García-Ortiz, 657 F.3d 25 (1st Cir. 2011) (remand/resentencing guidance when some counts vacated on appeal)