U.S. v. Miller

• Citation: 527 F.3d 54
• Decision Date: 02 June 2008
• Docket Number: No. 06-5187.,06-5187.
• Parties: UNITED STATES of America v. Donald R. MILLER Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

527 F.3d 54

UNITED STATES of America v. Donald R. MILLER Jr., Appellant.

No. 06-5187.

United States Court of Appeals, Third Circuit.

Argued February 1, 2008.

Filed: June 2, 2008.

Ronald A. Krauss, Esquire [ARGUED] Office of Federal Public Defender, Harrisburg, PA, for Appellant, Donald R. Miller Jr.

Christian A. Fisanick, Esquire [ARGUED] Office of United States Attorney,

Scranton, PA, Theodore B. Smith, III, Esq., Office of United States Attorney, Harrisburg, PA, for Appellee, United States of America.

Before: RENDELL and CHAGARES, Circuit Judges, and POLLAK,^* District Judge.

OPINION OF THE COURT

POLLAK, District Judge:

Pursuant to a jury trial in the District Court for the Middle District of Pennsylvania, Donald R. Miller was found guilty of (1) receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2), (2) possessing the same images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and (3) marijuana possession, in violation of 21 U.S.C. § 844(a). Miller was sentenced to concurrent terms of 46 months' imprisonment on the two child pornography counts and a concurrent term of 12 months' imprisonment on the marijuana count. In calculating the applicable sentencing range under the Sentencing Guidelines, the District Court found that Miller, in the course of his testimony at trial, had committed perjury, and accordingly applied a two-level sentencing enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C 1.1 (2003). On appeal, Miller argues (1) that there was not sufficient evidence to support his conviction for receiving child pornography, (2) the Constitution's double jeopardy clause barred entry of separate convictions for receiving and possessing the same images of child pornography, and (3) the record does not support the District Court's finding that Miller committed perjury.

We conclude that Miller's conviction for receiving child pornography was supported by substantial evidence. However, we further hold that (a) the double jeopardy clause barred convictions for both receiving and possessing the same images of child pornography, and (b) the entry of guilty verdicts on both of these counts was plain error. We also hold that Miller's testimony regarding his collection of adult pornography was neither willfully false nor material, as those terms are to be understood in the context of perjury, and thus did not support a sentencing enhancement. Accordingly, we will vacate the District Court's judgment and remand this case for re-sentencing consistent with this opinion.

I.

In January 2004, the FBI searched Miller's home while investigating the uploading of child pornography onto a website hosted by Prime Media, a company in Utah. In the basement of the house, the agents found a zip disk containing 1200-1400 images,¹ twenty of which, according to the government, depicted child pornography. (The District Court later found, for the purpose of calculating Miller's sentence, that eleven of these twenty images constituted child pornography). The agents also found 55.5 grams of marijuana in a jewelry box in Miller's wife's bedroom.

In the month of the search, January 2004, a grand jury charged Miller with two counts of child pornography relating to the images uploaded onto the Prime Media website. In November 2004, a five-count superseding indictment charged Miller with: (count one) receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2), based on the images found on the zip disk; (count two) transporting and shipping child pornography, in violation of 18 U.S.C. § 2252A(a)(1); (count three) receiving and distributing child pornography, also in violation of 18 U.S.C. § 2252A(a)(2); (count four) possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), based on the images found on the zip disk; and (count five) marijuana possession, in violation of 21 U.S.C. § 844(a).

At trial, the jury found Miller guilty both of receiving child pornography stored on the zip disk, count one, and of possessing the same images of child pornography, count four. The jury also found Miller guilty of marijuana possession, count five. However, the jury acquitted Miller of counts two and three. Miller timely filed a Rule 29(c) motion for judgment of acquittal, which the District Court denied.

Miller's presentence investigation report ("PSR"), prepared by the Probation Office, recommended that the District Court apply three two-level enhancements to Miller's base offense level under the Guidelines. Miller objected to these enhancements, and the District Court held an evidentiary hearing to address his objections. The District Court determined that one of the recommended enhancements was inapplicable,² but accepted the other two. The first of the two enhancements was for possession of ten or more images of child pornography, pursuant to U.S.S.G. § 2G2.2(b), based on the District Court's finding, by a preponderance of the evidence, that Miller possessed eleven images of child pornography (including two images that were duplicates of one another).

The second enhancement was for obstruction of justice, pursuant to U.S.S.G. § 3C1.1 (2003).³ The asserted obstruction took place when, at trial, Miller was asked, in the course of cross-examination regarding his collection of adult pornography: "Did you have sadomasochistic pictures." Appendix ("A.") 311. Miller replied: "Not that I'm aware of, no." Id. Contending that Miller's answer was a deliberate falsehood, the government, at the evidentiary hearing prior to the imposition of sentence, presented five images depicting adults that were found on the zip disk containing child pornography. The District Court, on viewing the five images, concluded that they "could fairly be described as sadomasochistic pornography." A. 21. Accordingly, the District Court ruled that Miller's answer at trial constituted perjury and, therefore, was an obstruction of justice.

The District Court entered separate judgments of conviction for counts one (receiving child pornography), four (possessing child pornography), and five (marijuana possession). The District Court imposed concurrent sentences of 46 months for each of the child pornography counts and a concurrent sentence of 12 months for the marijuana possession count.⁴ Miller timely appealed.

II.

We exercise plenary review over Miller's sufficiency-of-the-evidence claim. "In exercising that review, we must interpret the evidence in the light most favorable to the government as the verdict winner," United States v. Taftsiou, 144 F.3d 287, 290 (3d Cir.1998), and "do not weigh evidence or determine the credibility of witnesses in making [our] determination." United States v. Gambone, 314 F.3d 163, 170 (3d Cir.2003) (internal quotation omitted).

We review Miller's double jeopardy claim for plain error since he did not raise the issue before the District Court. See United States v. Jackson, 443 F.3d 293, 301 (3d Cir.2006).

With respect to the District Court's finding, for the purpose of applying the Guidelines, that Miller committed perjury, this court exercises plenary review over the District Court's interpretation of the Guidelines. See United States v. Grier, 475 F.3d 556, 561 (3d Cir.2007) (en banc) ("Under an advisory Guidelines scheme, district courts should continue to make factual findings by a preponderance of the evidence and courts of appeals should continue to review those findings for clear error.").⁵ "When the application of the Guidelines presents a mixed question of law and fact, `our standard and scope of review takes on greater scrutiny, approaching de novo as the issue moves from one of strictly fact to one of strictly law.'" United States v. Felton, 55 F.3d 861, 864 (3d Cir.1995) (quoting United States v. Belletiere, 971 F.2d 961, 964 (3d Cir.1992) (internal quotation omitted)).

III.

Miller argues that there is not substantial evidence proving that he received child pornography. In addressing this claim, we must uphold a jury's verdict "if there is substantial evidence from which a rational trier of fact could find guilt beyond a reasonable doubt." United States v. Brown, 3 F.3d 673, 680 (3d Cir.1993). Before evaluating the merits of this claim and reciting the evidence relating to Miller's conviction, we must consider the government's threshold contention that the claim has been waived.

A.

Miller first raised his sufficiency-of-the-evidence claim before the District Court in a timely post-trial motion for acquittal pursuant to Fed.R.Crim.P. 29(c). The government contends that, though the motion was a proper vehicle for presenting the claim to the District Court, the motion failed to preserve the claim for appeal. To preserve a sufficiency-of-the-evidence claim for appeal, the government argues, a defendant must raise the issue at trial via a Rule 29(a) motion "[a]fter the government closes its evidence or after the close of all the evidence." Fed.R.Crim. 29(a).

The government's argument finds no support in the language of Rule 29(c). The rule provides that "[a] defendant may move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict or after the court discharges the jury, whichever is later." Fed.R.Crim.P. 29(c)(1). The rule goes on to clarify that "[a] defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge." Fed.R.Crim.P. 29(c)(3). These terms would seem to authorize a court of appeals to exercise plenary review over a claim raised in a Rule 29(c) motion without regard to whether the claim was earlier raised in a Rule 29(a) motion. It appears that each circuit court addressing this precise question has so held. See United States v. Holland, 381 F.3d 80, 86 n. 7 (2d Cir.2004); United States v. South, 28 F.3d 619, 626 n. 3 (7th Cir.1994); United States v. Castro-Lara, 970 F.2d 976, 980 (1st Cir.1992),⁶ abrogated...