Commonwealth v. Molina , 476 Mass. 388 ( 2017 )

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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.