304 F.3d 358 (5th Cir. 2002), 01-11042, U.S. v. Reedy

Docket Nº:01-11042.
Citation:304 F.3d 358
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas REEDY and Janice Reedy, Defendants-Appellants.
Case Date:August 26, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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304 F.3d 358 (5th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas REEDY and Janice Reedy, Defendants-Appellants.

No. 01-11042.

United States Court of Appeals, Fifth Circuit

August 26, 2002

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Delonia Anita Watson (argued), Fort Worth, TX, for Plaintiff-Appellee.

Steven Jay Rozan (argued), Kuniansky & Rozan, Houston, TX, for Thomas Reedy.

Appeals from the United States District Court for the Northern District of Texas.

Before JOLLY, SMITH and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Thomas and Janice Reedy appeal their convictions of, and sentences for, transporting "visual depictions" of "minors engaging in sexually explicit conduct," in violation of 18 U.S.C. § 2252, and transporting "child pornography," in violation of 18 U.S.C. § 2252A. Websites specializing in child pornography paid the Reedys a portion of their profits to establish a sign-on, screening, and age verification system for subscribers.

The government agrees that the district court imposed multiplicitous sentences by counting each image posted as a violation of two statutes that criminalize the same conduct. Accordingly, the court should resentence using § 2252 for the substantive counts of transporting visual depictions of minors engaging in sexually explicit activity.

The parties disagree, however, as to what "unit of prosecution" should apply for a violation of § 2252. Because the statute does not speak to the question, the rule of lenity requires resentencing based on the number of websites rather than the number of individual images. We vacate and remand for resentencing only and reject the Reedys' other arguments.

I.

In April 1999, United States Postal Inspector R.C. Adams contacted Detective Steve Nelson of the FBI's Crimes Against Children Task Force assigned to the Dallas Police Department's Child Exploitation Unit. Adams requested Nelson's aid in investigating an Internet website named "kintamani.com," which linked to another website named "Lolita World." Nelson agreed to access the website as part of an undercover investigation.

To gain access to all the information on the website, a prospective subscriber was prompted to go to a sign-up page hosted by "KeyZ." The subscriber then had to provide his or her name, address, and a credit card number to which to charge a fee of $29.95 for thirty days' access. Nelson

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purchased access and found pornography on "Lolita World" that involved children ranging from infants to teenagers. Further investigation uncovered that Landslide, Inc. ("Landslide"), provided a computerized credit card verification service used by various webmasters whose websites contained adult and child pornography. Landslide offered access under (1) the adult verification system ("AVS") and (2) the "KeyZ" system.

AVS subscribers paid $19.95, which provided six months' access to all the websites under the AVS umbrella. The websites accessed through AVS offered adult pornography only.

KeyZ subscribers purchased access to specific sites at $29.95 per month. Landslide retained a portion of the money collected, and the webmasters received the rest. Under the KeyZ system, Nelson found twenty-eight websites depicting child pornography. These websites included Lolita Hardcore/Fucking Little Kids, Blackcat Lolita, Children of God, Children Forced to Porn, Just Grow Up, Child Rape, Children Playground, Innocent Lolita, Fantastic Site, and Special Site.

Nelson captured information from some of the websites by using an Internet card that permitted him to record the information onto a video cassette recorder. He also used a software package called "Web Buddy" to capture the information from the websites and copy it onto the hard drive of his computer so he could view it offline. He determined the locations of the websites from which the child pornography originated by using a software package called "VisualRoute." The location of each image of child pornography alleged in the indictment was traced to an internet service provider outside Texas.

The Landslide and AVS homepages displayed banners, or online advertisements with hyperlinks, alerting potential subscribers to the availability of child pornography on various websites. In addition, Landslide offered a free "adult classified advertisements" section on the website that showed banners advertising child pornography. On reviewing the ads, Nelson found postings by persons wanting to trade child pornography, to have sexual contact with children, and to trade KeyZ passwords.

The Reedys were the owners and operators of Landslide, and Thomas Reedy was its founder. Janice Reedy held various positions with the company beginning in January 1998, including handling its financial transactions. During an interview with law enforcement agents, Thomas Reedy admitted that he and his wife knew some of the websites contained child pornography and that child pornography represented thirty to forty percent of his business. The Reedys had authored and received emails indicating that they were aware that some of the websites on the KeyZ system offered child pornography and that the Reedys knew the transmission of child pornography was illegal.

During a search of the Reedys' residence in September 1999, law enforcement agents seized a desktop computer and a notebook computer. The basis of Count 89 was seventy-one child pornography images from the desktop computer. The police found three images of child pornography on the notebook computer.

Landslide's gross sales from September 1997 through August 1999 were $9,275,964; $204,025 was returned to dissatisfied customers. Landside incurred costs of $6,103,517. Based on this information, the auditor determined that Landslide had made a profit of $2,968,422 and that $1,290,412 of the proceeds came from the eleven websites named in the indictment.

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II.

The eighty-nine-count superseding indictment charged the Reedys with various offenses arising from their participation in the transmission of child pornography over the Internet. Count 1 charged conspiracy to transport "any visual depiction" produced through the use of "a minor engaging in sexually explicit conduct," in violation of § 2252(a)(1) and (b)(1). Counts 2 through 44 charged the substantive offenses of transporting and aiding and abetting the transport of visual depictions produced through the use of minors engaging in sexually explicit conduct, in violation of §§ 2252 and 2. Count 45 charged conspiracy to commit activities relating to material constituting or containing child pornography in violation of § 2252A(a)(1) and (b)(1). Counts 46 through 88 charged committing activities relating to material constituting or containing child pornography and aiding and abetting in violation of §§ 2252A and 2. Count 89 alleged possession of a computer disk and computer material containing approximately fifty images of child pornography produced by means of a computer using material shipped and transported in interstate commerce, in violation of § 2252A, which is part of the Child Pornography Prevention Act of 1996, 18 U.S.C. § 2251 et seq.

The jury found Thomas Reedy guilty on counts 1 through 89 and Janice Reedy guilty on counts 1 through 87. The court sentenced Thomas Reedy to 180 months' consecutive imprisonment on each count, plus three years' supervised release on each count, to run concurrently, and a special assessment of $8,900. His prison term would have equaled 1,335 years, so the court ordered that he serve a life sentence.

Janice Reedy received 168 months' imprisonment on each count, to run concurrently, plus three years' supervised release and a special assessment of $8,700. Her prison term totals fourteen years.

III.

The Reedys allege that their indictment was multiplicitous for three reasons: (1) The indictment twice charges the same conduct as the transportation of materials that sexually exploit minors in violation of § 2252 and the transportation of child pornography in violation of § 2252A. (2) The indictment alleged duplicative conspiracies to violate each of the two statutes. (3) The indictment and the district court incorrectly viewed the number of pictures, rather than the number of websites, as the relevant unit of analysis under § 2252.

A.

We review issues of multiplicity de novo. United States v. Dupre, 117 F.3d 810, 818 (5th Cir. 1997). " 'Multiplicity' is the charging of a single offense in several counts." 1A CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 142, at 7-8 (West 3d ed. 1999) "The chief danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense." United States v. Swaim, 757 F.2d 1530,1537 (5th Cir. 1985).

Where overlapping statutory provisions create a risk of multiplicity, "[t]he test for determining whether the same act or transaction constitutes two offenses or only one is whether conviction under each statutory provision requires proof of an additional fact which the other does not." United States v. Nguyen, 28 F.3d 477, 482 (5th Cir. 1994) (citing United States v. Free, 574 F.2d 1221, 1224 (5th Cir. 1978)). Where a multipart transaction raises the prospect of multiplicity under a single statute, the question becomes " 'whether separate and distinct prohibited

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acts, made punishable by law, have been committed.' " United States v. Shaid, 730 F.2d 225, 231 (5th Cir. 1984) (quoting Bins v. United States, 331 F.2d 390, 393 (5th Cir. 1964)).

B.

We first consider whether the government properly charged two counts for each image by charging separate...

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