Multiplicity Issue Regarding Distribution of CP Remains Unsettled

United States v. Smith, 815 F.3d 671 (10th Cir. 2016): Mr. Smith was convicted of eight counts of distribution of child pornography, and one count of possession of child pornography. He had made the files available through a file-sharing program. The distribution counts were based on the fact that a law enforcement agent downloaded files from Mr. Smith’s computer eight different times. Mr. Smith contended the eight counts were multiplicitous because he made the files available only once. On plain error review, the Court acknowledged that the law in this circuit is unclear, and because it is unsettled, Mr. Smith loses.