U.S. v. Buchanan

• Decision Date: 19 April 2007
• Docket Number: No. 04-41364.,04-41364.
• Citation: 485 F.3d 274
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Michael BUCHANAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

485 F.3d 274

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Michael BUCHANAN, Defendant-Appellant.

No. 04-41364.

United States Court of Appeals, Fifth Circuit.

April 19, 2007.

Terri Lynn Hagan, Asst. U.S. Atty., Plano, TX, for U.S.

Joseph Michael Buchanan, Fort Worth, TX, pro se.

Appeal from the United States District Court for the Eastern District of Texas.

Before BARKSDALE, BENAVIDES and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Following a jury trial, Joseph Buchanan was convicted of four counts of receiving child pornography transported in interstate commerce by computer¹ and one count of possession of child pornography.² Buchanan appeals his conviction and sentence on numerous grounds. Because the first four counts against Buchanan are multiplicitous, we vacate them and remand with instructions to reinstate only one of the convictions and to resentence him consistent with this opinion. All of Buchanan's other claims lack merit.

I

Joseph Buchanan was employed by the United States Army Corps of Engineers as a park ranger and served at its Lake Texoma location. Each ranger was assigned an individual computer that required a unique password for access and would log the actions on the computer to a record tied to the specific ranger. In early 2001, a Corps system administrator in Tulsa received a complaint from the Texoma station that the office's internet access was slow. The administrator used a program to determine that Buchanan's computer was slowing down the office's access by connecting to "an X-rated porn site." The Corps began monitoring Buchanan's computer use and determined that he continued to view pornography on his office computer.

When confronted, Buchanan admitted the misuse and stated he would never do it again. In March 2002, Ron Jordan, the Lake Texoma manager, received a report that Buchanan was again viewing pornography. Using the network administrator's password, Jordan accessed Buchanan's computer and discovered pornographic photographs and movies involving adults as well as bestiality. Jordan printed out an image and questioned Buchanan, who again admitted to viewing the pornography and promised to cease these activities. In April, Jordan received another report about Buchanan, found pornographic images on a scan of Buchanan's computer, and suspended Buchanan for two days.

In August 2002, Jordan resumed monitoring Buchanan's computer use after receiving another report that Buchanan was viewing pornography on his work computer. On August 28, Jordan found pornographic images in Buchanan's temporary internet folder—the location on the hard drive in which data from accessed webpages, including images, are automatically stored. Jordan copied some of the temporary internet folder files from Buchanan's computer to his computer. The next day, Jordan saw that more files had been added to Buchanan's temporary internet folder. Some of these files were images of nude, prepubescent children. Jordan noticed that files were being added and deleted as he viewed the folder. A number of graphic files with sexually explicit names were automatically downloaded—showing that someone was viewing a webpage or webpages containing these images on the internet—over a span of several minutes during a single computer session. Jordan copied some of the files, including both child and adult pornography, onto a compact disc that was later turned over to law enforcement officials.

FBI Agent Wes Wheeler investigated Buchanan's computer use and found that four large images on the CD depicted children from 10 to 12 years old engaged in sexually explicit conduct. Wheeler met with Buchanan on September 12, 2002 and showed him images printed from the CD. Buchanan admitted that he had visited internet sites containing child pornography and that he had in the past saved such images, viewed them, and later deleted them. He said the sites he typically visited contained both adult and child pornography.

An FBI computer forensic examiner determined that the CD contained 127 images, including 54 depicting minors from 7 to 15 years old. The examiner found fifty small, "thumbnail" images depicting minors—pictures displayed on a web page to preview an image, which a viewer could click to access a larger, higher-resolution version of the same image—in addition to the four larger images of child pornography Agent Wheeler had earlier identified. The examiner also used sophisticated software to find a number of encrypted files on Buchanan's hard drive. The files were password-protected and buried nine directories deep through the creation of multiple subdirectories. The examiner further found an encryption program, called Scramdisk, designed to disguise files. After a thorough sweep of the hard drive with various software programs, the examiner found over 3,000 pornographic images on the hard drive, including more than 300 images of children from 3 to 15 years old engaged in sexually explicit conduct, each of which was hidden and password-protected.

A superseding indictment charged four separate counts of receipt and attempted receipt of child pornography under 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1)—one count for each of the four larger images from the CD provided by Jordan. A fifth count charged Buchanan with possession of child pornography under 18 U.S.C. § 2252(a)(4)(A) based on eleven images found on Buchanan's hard drive.

Following a jury trial, Buchanan was convicted on all five counts and sentenced to 71 months in prison for each of the first four counts and 60 months for the fifth count, all to be served concurrently. Buchanan was also assessed a $100 special assessment for each count and a $5,000 fine—$5,500 total. Buchanan appeals both his convictions and sentence.

II

Buchanan argues that the convictions for receipt of child pornography in counts one through four of the superceding indictment are multiplicitous. Convictions are multiplicitous when the prosecution charges "a single offense in more than one count."³ The superseding indictment alleged that Buchanan had knowingly received and attempted to receive one or more visual depictions of minors engaging in sexually explicit conduct by means of a computer and the internet, and the indictment then listed the four counts in a table with information about four images, as follows:

                 Count   Image               Description
                  1      andy—1[1].jpg       [omitted]4
                  2      hard 11[1].jpg      [omitted]
                  3      matt[1].jpg         [omitted]
                  4      Boyshard4[1].jpg    [omitted]
                

The district court denied Buchanan's motion to quash the indictment, and we review that ruling de novo.⁵ Buchanan maintains that the indictment does not allege that his receipt of the four images was the result of four separate transactions. He also contends that the four images were automatically downloaded by the computer he was using into temporary internet folders while he was viewing images of adults contained on the same, single webpage.

The rule against multiplicity is grounded in the Fifth Amendment's prohibition against double jeopardy, intending "to prevent multiple punishments for the same act."⁶ We have held that "`[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.'"<sup>7</sup> We have said, "Where a multipart transaction raises the prospect of multiplicity under a single statute, the question becomes `whether separate and distinct prohibited acts, made punishable by law, have been committed.'"⁸ When "`the jury is allowed to return convictions on multiplicious counts, the remedy is to remand for resentencing, with the government dismissing the count(s) that created the multiplicity'" because "`[t]he chief danger raised by a multiplicious indictment is the possibility that the defendant will receive more than one sentence for a single offense.'"⁹

Buchanan was convicted in counts one through four of four separate violations of 18 U.S.C. § 2252(a)(2), which provides:

(a) Any person who—

* * *

(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if—

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct. . . .¹⁰

At the time of the offense, the penalty for violating or attempting to violate this section was imprisonment for not more than 15 years, unless there has been a prior conviction for certain crimes, in which event the penalty was imprisonment for not less than 5 years and not more than 30 years.¹¹

We have specifically addressed multiplicity and § 2252 on at least two occasions.¹² In Gallardo, a defendant was convicted under § 2252 of four counts of mailing child pornography.¹³ The defendant had mailed three envelopes to different locations at one time and a fourth envelope on a later date.¹⁴ He was charged with a separate count for each envelope.¹⁵ On appeal, the defendant asserted that the three counts stemming from the three envelopes mailed at the same time should have been reduced to a single count.¹⁶ Applying a previous holding regarding mail fraud,¹⁷ we held that "each separate use of the mail to transport or ship child pornography should constitute a separate crime because it is the act of either transporting or shipping that is the central focus of this statute."¹⁸ "The number of photographs in each envelope is irrelevant" for determining the appropriate number of counts.¹⁹ This court reasoned by analogy that "a defendant arrested with one binder containing...