Two domains, one folder: Prosecution can bring two charges

The Sixth Circuit recently held that a hosting account having two domain names directed to it allowed the defendant to be charged with two counts of transportation of child pornography (and therefore was not multiplicitous or a violation of double jeopardy).

In United States v. Richards, 659 F.3d 527 (6th Cir. 2011), Richards argued that because all of the data was located in the same folder, it was irrelevant whether he had two distinct domain names. The court noted, "the sites could have operated at the same time and drawn different images from the same folder because they were on different domains."

While that is certainly the case, the domain name should not be the key here. Even if only one domain name existed, it could have been accessed on multiple computers and "drawn different images from the same folder." The domain names are irrelevant. If a person were to register a hundred domain names for one website, they should not automatically be subjected to a hundred counts. Rather, the approach would vary using the court's citations from other circuits.

• United States v. Schales, 546 F.3d 965, 979 (9th Cir. 2008) - “[W]here a defendant has stored sexually explicit images in separate mediums, the government may constitutionally charge that defendant with separate counts for each type of material or media possessed.” To apply Schales to Richards, there should only be one count. It was saved in one single medium. Though it could have been accessed through different domain names does not change the medium.
• United States v. Gallardo, 915 F.2d 149, 151 (5th Cir. 1990) (“With respect to the child pornography statute [18 U.S.C. § 2252(a)(1)], each separate use of the mail to transport or ship child pornography should constitute a separate crime." Under this standard, Richards should have been charged a different count for each visit to the site and access of the files.