Opinion
Case No. K2-2016-0287A
09-21-2017
STATE OF RHODE ISLAND v. MICHAEL CHAPUT
ATTORNEYS: For Plaintiff: Matthew LaMountain, Esq. For Defendant: John E. MacDonald, Esq.
DECISION MCBURNEY , M. Before this Court is the Defendant, Michael Chaput's (Defendant), Super. R. Crim. P. 9.1 (Rule 9.1) motion to dismiss Count One against him in the above-entitled matter. As grounds for his motion, Defendant asserts that no probable cause exists to believe that the offense charged has been committed or that Defendant committed said charge. For the reasons set forth herein, this Court denies Defendant's Rule 9.1 motion to dismiss.
I
Facts and Travel
On August 18, 2015, the Rhode Island Internet Crimes Against Children (ICAC) Task Force learned that a computer using the Internet Protocol (IP) address 68.0.233.124 was on a peer-to-peer file-sharing network. The ICAC Task Force conducted a single source direct connection to said IP address and downloaded a file named "Kait-Katrin 6yo love dad.avi" with the description "an adult male having vaginal intercourse with a nude female toddler." Harris Aff. at 3. Detective Kevin Harris (Detective Harris)—investigator assigned to ICAC— reviewed the file and confirmed its content to be in conformity with the definition of child pornography as defined under G.L. 1956 § 11-9-1.3. Id.
ICAC is a task force trained to conduct undercover investigative operations and detect subjects trading child pornography over the internet using peer-to-peer networks. See Harris Aff. at 1. The Rhode Island ICAC Task Force operates through the Rhode Island State Police in conjunction with a national network of multi-agency, multi-jurisdictional task forces in order to carry out offensive examinations, investigations, and prosecutions related to internet crimes against children and technology-facilitated child sexual exploitation. Id.
An IP address "is a unique routing number associated with a computer connected to the Internet which functions in the routing of data between source and destination. IP addresses are owned by Internet service providers (such as Verizon and Cox Communications) who, in turn, assign them to customers for Internet access. Typically, an IP address is represented by numbers separated by periods . . . which identifies that computer connected on the Internet at a given date and time. Normally, IP address assignments by Internet service providers are unique in that no two computers logged onto the Internet at the same date and time are assigned the same IP address. Internet service providers maintain records of the assignment of IP addresses to their individual subscribers." Harris Aff. at 2.
Peer-to-peer networks are designed to allow participating members to share electronic files over the internet. See Harris Aff. at 1. To become a participating member on a peer-to-peer network, "a computer user installs file-sharing software on a computer which creates a sharing folder, into which may be placed any electronic files available for other members on the network to copy. The user also gains the ability to copy any electronic files into his/her sharing folder from other network members. A single peer-to-peer network may consist of thousands of interconnected computers, and the electronic files available on that network are all stored on the individual members' computers rather than on a central host computer." Id. (internal quotation marks omitted).
An inquiry with the American Registry of Internet Numbers (ARIN) was conducted, and the results determined that the owner of IP address 68.0.233.124 was identified as Cox Communications Incorporated. A request for records was sent to Cox Communications, and Cox Communications provided that the IP address belonged to Barbara Chaput of 155 Read Avenue in Coventry, Rhode Island. Thereafter, a search warrant was obtained and executed at said address. Defendant, son of Barbara Chaput, admitted that he was the primary user of the computer in the home. See Michael Chaput Witness Statement at 4-5, No. 33-36.
The ICAC Task Force seized Defendant's hard drive and conducted a forensic examination of its contents. The ICAC Task Force discovered nine images of child pornography located within folders found within Mike's Documents folder titled "NEW PICS" and "WAYNE NEW." See Preliminary Digital Forensic Examination Report at 3. The ICAC Task Force also examined the hard drive for e-Mule evidence and found multiple files with names indicative of child pornography that were downloaded or shared. Id. at 4. Specifically, the file name "Kait-Katrin 6yo love dad.avi" was downloaded using e-Mule on August 18, 2015 at 13:40 (UTC) and was last shared on August 18, 2015 at 14:39 (UTC). Id.
A peer-to-peer file sharing program for computers. See Michael Chaput Witness Statement at 13, No. 109-113.
Additionally, on October 7, 2015, the Defendant was interviewed by Detective Harris and Detective Pacheco. During the interview, the Defendant admitted to reviewing and possessing child pornography through the use of e-Mule. See Michael Chaput Witness Statement at 6, No. 48; 8, No. 64-69; 9, No. 76; 11, No. 92, 94, 95, 98; 12, No. 99. The Defendant admitted that he has copied images and videos containing child pornography onto DVDs and mailed the DVDs to a man named "Wayne" in the state of Wyoming for $100.00 per DVD. Id. at 7, No. 56-61; 18-19, No. 158-167; 20, No. 174. Furthermore, the Defendant admitted to using e-Mule as recently as August or September of 2015. Id. at 6, No. 48; 22, No. 190. The Defendant explained that he would use the peer-to-peer sharing program to search and download videos and that some of the content included "girls that would be nude." Id. at 8, No. 64-69. The Defendant stated that he enjoyed looking at nude five and six-year-old girls and that he masturbated to videos of young girls. Id. at 10, No. 81-82, 87; 12, No. 99; 15, No. 125-126. When asked whether the Defendant realized that he could have been sharing files with others by downloading content, the Defendant responded, "I know, yeah. I know I'm sharing some, but the folder I had was everything I had was, was it was music." Id. at 13, No. 113. However, the Defendant later claimed that he had an online friend who sometimes received nude photos of five to nine-year-old girls through Defendant's folders titled "Wayne" and "new pics." Id. at 17-18, No. 145-150.
The Defendant admitted he would specifically type in "Five YO, Six YO" and explained that YO meant "year old." See Michael Chaput Witness Statement at 9, No. 76-78.
Based on the above information, the Defendant was charged with two child pornography related offenses. Count One alleges that the Defendant knowingly mailed, transported, delivered, or transferred images of child pornography in violation of § 11-9-1.3(a)(2). Count Two alleges that the Defendant knowingly possessed a computer hard drive that contained images of child pornography in violation of § 11-9-1.3(a)(4). Defendant now moves to dismiss Count One on the ground that there is insufficient probable cause to charge the Defendant with transmittal of child pornography.
II
Standard of Review
In deciding a motion to dismiss an information pursuant to Rule 9.1, this Court is "required to examine the information and any attached exhibits to determine whether the state has satisfied its burden to establish probable cause to believe that the offense charged was committed and that the defendant committed it." State v. Martini, 860 A.2d 689, 691 (R.I. 2004) (internal quotations omitted); see also State v. Aponte, 649 A.2d 219, 222 (R.I. 1994). The Supreme Court of Rhode Island has held that the probable cause standard applied to a motion to dismiss is the same as the probable cause standard applied to determine an arrest. State v. Reed, 764 A.2d 144, 146 (R.I. 2001). "[P]robable cause to arrest exists when the facts and circumstances within the police officer's knowledge . . . and of which he or she has reasonably trustworthy information are sufficient to [warrant] a reasonable person to [believe] that a crime has been committed and that the person to be arrested committed [the crime]." Id. When ruling on a motion to dismiss, the trial judge should grant the state "the benefit of every reasonable inference in favor of a finding of probable cause." State v. Young, 941 A.2d 124, 128 (R.I. 2008) (internal quotations omitted).
III
Analysis
Violation of § 11-9-1.3(a)(2)
In support of his motion to dismiss Count One, Defendant argues that the criminal information and exhibits fail to demonstrate the existence of probable cause to believe that the Defendant transferred child pornography in violation of § 11-9-1.3(a)(2). Defendant contends that the only evidence of transmittal of child pornography is his statement to the police on October 7, 2015, whereby Defendant acknowledged sending images to Wayne in Wyoming. However, Defendant argues that there is no evidence regarding whether the images actually contained child pornography. Further, Defendant avers that law enforcement never intercepted the mailings or reviewed the sent photographs to conclude that the images contained child pornography. Therefore, Defendant argues, his general statement of sending pictures, without more, does not rise to the level of probable cause to believe that he transmitted photographs of child pornography.
Section 11-9-1.3, in pertinent part, provides that it is a violation to "[k]knowingly mail, transport, deliver or transfer by any means, including by computer, any child pornography." Section 11-9-1.3(a)(2); see also 11-9-1.3(b)(1). While the Defendant argues the sufficiency of the evidence in relation to the Defendant's mailings of child pornographic images to "Wayne" in Wyoming through the United States Postal Service, the Defendant fails to acknowledge the evidence presented of Defendant transporting, delivering, or transferring child pornography by way of a peer-to-peer file sharing network. Therefore, the issue before this Court is whether the terms "transport," "deliver," or "transfer" found under § 11-9-1.3 can actually include downloading or sharing content over a peer-to-peer file sharing network.
"Whoever violates or attempts or conspires to violate subdivisions (a)(1), (a)(2) or (a)(3) of this section shall be subject to a fine of not more than five thousand dollars ($5,000), or imprisoned for not more than fifteen (15) years, or both." Sec. 11-9-1.3(b)(1).
Since § 11-9-1.3 does not define the terms "transport," "deliver," or "transfer," this Court considers the ordinary, common meaning of the aforementioned terms using Black's Law Dictionary. In doing so, Black's Law Dictionary defines the term "transport" as "[t]o carry or convey (a thing) from one place to another." Transport, Black's Law Dictionary (10th ed. 2014). The term "deliver" is defined as "[t]he formal act of voluntarily transferring something." Deliver, Black's Law Dictionary (10th ed. 2014). Finally, the term "transfer" is defined as "[t]o convey or remove from one place or one person to another." Transfer, Black's Law Dictionary (10th ed. 2014).
Moreover, this Court notes that our Supreme Court has yet to apply the meaning of transport, deliver, or transfer in the context of child pornography pursuant to § 11-9-1.3 Therefore, this Court looks to other jurisdictions with similar statutes to determine whether transport, deliver, or transfer includes downloading and computer file sharing child pornographic content through a peer-to-peer network. This Court has found several jurisdictions that have held the distribution of child pornography includes both downloading child pornographic media content from a peer-to-peer computer network and storing child pornographic images and videos in a shared folder accessible to other users in the peer-to-peer network. See United States v. Shaffer, 472 F.3d 1219, 1223-24 (10th Cir. 2007) (holding defendant distributed child pornography in the sense of having "delivered," "transferred," "dispersed," or "dispensed" it to others when he "freely allowed [others] access to his computerized stash of images and videos and openly invited them to take, or download, those items") (emphasis added); United States v. Abraham, 2006 WL 3052702, at *8 (W.D. Pa. Oct 24, 2006) (holding defendant distributed child pornography when, as a result of the defendant's installation of a peer-to-peer video file sharing program on a computer, a police officer was able to download the child pornography from defendant's computer to the officer's computer) (emphasis added); United States v. Dayton, 485 F. App'x 937, 940-41 (10th Cir. 2012) (same); United States v. Caparotta, 890 F. Supp. 2d 200, 204 (E.D. N.Y. 2012) (same); see also United States. v. Griffin, 482 F.3d 1008, 1012 (8th Cir. 2007) (sentencing was enhanced for the distribution of child pornography for a defendant who used peer-to-peer file sharing network). Therefore, based on the plain and ordinary meaning of "transport," "deliver," and "transfer," as well as the holdings in jurisdictions with similar statutes, this Court finds that transporting, delivering, and transferring child pornography includes downloading and sharing child pornographic content over peer-to-peer networks. Accordingly, in the case at bar, it is clear that the State has sufficient evidence to establish probable cause that the Defendant transported, delivered, or transferred child pornographic images and videos.
Here, the evidence presented provides that on August 18, 2015, the ICAC Task Force—by using a peer-to-peer file sharing program called e-Mule—was able to directly connect to Defendant's IP address 68.0.233.124 and access his files for download. In doing so, the ICAC Task Force downloaded several files containing what was identified as child pornography. Specifically, one such file was named "Kait-Katrin 6yo love dad.avi." Thus, it is clear that the Defendant's files containing child pornography were accessible to others over the peer-to-peer network. Therefore, the Defendant could have "transported," "delivered," or "transferred" the media content to others by freely inviting them to take the media content in the files. See Shaffer, 472 F.3d at 1223 (holding that distribution includes a defendant storing child pornographic images in a computer file that is freely accessible to others over a peer-to-peer file sharing network); Abraham, 2006 WL 3052702, at *8 (holding defendant distributed child pornographic content when police officer was able to access the images via a peer-to-peer file sharing program).
Moreover, during the Defendant's interview with ICAC Task Force detectives, Defendant admitted to using e-Mule—a peer-to-peer file sharing program—to download child pornographic media. See Michael Chaput Witness Statement at 6, No. 48; 8, No. 64-69; 11, No. 92, 94, 95, 98; 12, No. 99. Defendant claimed that he last used e-Mule in August or September 2015 and that he had used the network to search for videos and images of five to ten-year-old girls. See id. at 9, No. 76-78; 12, No. 99; 22, No. 190. Moreover, the Defendant acknowledged that by downloading content from e-Mule he is also sharing files with others on the network. See id. 13, No. 113. Defendant further confessed that he had shared child pornographic media content over e-Mule on at least one occasion with an online friend through folders titled "Wayne" and "new pics." See id. 17-18, No. 145-150. As such, this Court finds that there is substantial evidence presented in the information packet to establish probable cause that the Defendant transported, delivered, or transferred child pornography in violation of § 11-9-1.3. See Reed, 764 A.2d at 146; State v. Jenison, 442 A.2d 866, 873-74 (R.I. 1982).
IV
Conclusion
This Court finds that the terms "transport," "deliver," and "transfer"—pursuant to § 11-9-1.3(a)(2)—can include transporting, delivering, or transferring child pornographic content by way of a computer peer-to-peer file sharing program. As such, this Court finds that probable cause exists in this case to believe Defendant knowingly transported, delivered, or transferred child pornographic images in violation of § 11-9-1.3(a)(2). Accordingly, Defendant's Rule 9.1 motion to dismiss is hereby denied.
ATTORNEYS:
For Plaintiff: Matthew LaMountain, Esq.
For Defendant: John E. MacDonald, Esq.