United States v. Emly

• Citation: 747 F.3d 974
• Decision Date: 03 April 2014
• Docket Number: No. 13–1882.,13–1882.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Christopher EMLY, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

747 F.3d 974

UNITED STATES of America, Plaintiff–Appellee

v.Christopher EMLY, Defendant–Appellant.

No. 13–1882.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 18, 2013.

Filed: April 3, 2014.

Christopher J. Lancaster, Asst. Fed. Public Defender, Fargo, ND, argued (Neil Fulton, Fed. Public Defender, Scott D. McGregor, Asst. Fed. Public Defender, on the brief), for appellant.

Nicholas W. Chase, Asst. U.S. Atty., Fargo, ND, argued (Timothy Q. Purdon, U.S. Atty., Megan A. Healy, Asst. U.S. Atty., on the brief), for appellee.

Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Christopher Emly was convicted of one count of receipt of materials involving the sexual exploitation of children, in violation of 18 U.S.C. § 2252(a)(2), and three counts of possession of materials involving the sexual exploitation of children, in violation of 18 U.S.C. § 2252(a)(4)(B). On appeal, Emly alleges three errors: (1) his multiple convictions for possession violate the Double Jeopardy Clause; (2) the jury's guilty verdict on both the greater receipt offense and its lesser included possession offense violates the Double Jeopardy Clause; and (3) the jury instructions constructively amended the indictment. We affirm in part and remand with directions.

I. Background

In October 2010, Special Agent James Shaw of the North Dakota Bureau of Criminal Investigation discovered several files containing child pornography that he traced to a computer located in Emly's mother's home. Agent Shaw obtained a search warrant for the residence. During the search, Agent Shaw seized a laptop computer that contained the files he had first discovered. He also found and seized a Secure Digital card (SD card), a compact disc (CD), and a desktop computer tower. All of these items were seized from a room identified as Emly's bedroom.

Forensic analysis of the laptop revealed that LimeWire, a file-sharing software program that allows users to receive and distribute files over the Internet, had been installed on the laptop, but had been subsequently uninstalled prior to the search. The analysis also revealed approximately 629 image files containing child pornography on the laptop. The SD card contained copies of 481 of the child pornography files found on Emly's laptop. Additionally, the CD and the desktop computer each contained the same set of six to eight illegal images. These images were not part of the 629 image files found on the laptop, but the evidence suggests that Emly burned the six to eight images onto the CD from the laptop and then transferred the images onto the desktop computer tower. After Emly successfully burned the six to eight images onto the CD, these images were automatically deleted from the laptop.

A federal grand jury returned an indictment charging Emly with the counts set forth above. Specifically, the indictment charged Emly with one receipt count for using his laptop to receive child pornography files via LimeWire and one possession count each for the SD card, the CD, and the desktop computer tower. All three possession counts charged Emly with possession of child pornography on the same day—the day the devices were seized—“on or about November 9, 2010.” The district court denied Emly's pretrial motion to merge the three possession counts.

Emly proposed a jury instruction for the charged receipt offense, Instruction No. 9, based on the Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit. The government proposed a similar jury instruction but included language regarding the production of the child pornography that was absent from Emly's proposed instruction. The district court substantially adopted Emly's proposed instruction in its final jury instructions.

At trial, the district court instructed the jury on both the charged receipt offense and its lesser included offense of possession. The instruction on the lesser included offense was a classic “stair-step” instruction, ordering the jury to consider the lesser included offense only if it found the defendant not guilty or if it could not reach a verdict on the receipt offense. The Special Verdict Form also instructed the jury to find Emly either not guilty or guilty of the receipt offense and further instructed the jury to deliberate on the lesser included possession offense only if it found Emly not guilty of the receipt offense. Despite the instructions, the jury returned a guilty verdict on both the receipt offense and its lesser included possession offense. The district court did not, however, enter judgment of conviction on the lesser included possession offense. The jury also returned a guilty verdict on each of the three possession counts. The district court polled the jury to ensure that the verdict was unanimous and, in response, each juror confirmed that the verdict read in court was his or her verdict. Emly did not object to any of these matters at trial.

The district court sentenced Emly to 228 months' imprisonment on the receipt count and 120 months' imprisonment on each count of possession. The sentences were ordered to run concurrently. This appeal followed.

II. Discussion

A. Multiplicity

Emly argues that under § 2252(a)(4)(B), the three possession counts listed in the indictment are multiplicitous because they charge the same crime. He contends that the conduct charged in the indictment—possessing copies of several different files on separate devices—constitutes only a single violation of § 2252(a)(4)(B). We agree.

“We review de novo the district court's determination that counts in an indictment are multiplicitous.” United States v. Platter, 514 F.3d 782, 785 (8th Cir.2008). “The rule against multiplicitous prosecutions is based on the Fifth Amendment's Double Jeopardy Clause, which ‘protects against multiple punishments for the same offense.’ ” United States v. Hinkeldey, 626 F.3d 1010, 1013 (8th Cir.2010) (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)). When an indictment includes more than one count charging the same statutory violation, “the question is whether Congress intended the facts underlying each count to make up a separate unit of prosecution.” United States v. Chipps, 410 F.3d 438, 447 (8th Cir.2005). A unit of prosecution is “the aspect of criminal activity that Congress intended to punish.” Id. at 448. “When Congress fails to establish the unit of prosecution ‘clearly and without ambiguity,’ we resolve doubt as to congressional intent in favor of lenity for the defendant.” Id. (quoting Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed. 905 (1955)).

Section 2252(a)(4)(B) makes it a crime to

knowingly possess[ ] ... 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction ... if—(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct[.]

Whether § 2252(a)(4)(B) permits a charge for each matter possessed in violation of the statute is a question of first impression in our circuit. We have, however, suggested that the language in § 2252(a)(4)(B) manifests Congress' intent to include multiple matters in a single unit of prosecution. In United States v. Hinkeldey, 626 F.3d 1010, 1011 (8th Cir.2010), the defendant was convicted of six counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The indictment charged one possession count each for a computer, a zip drive, and four computer disks that contained child pornography. Id. at 1012.Section 2252A(a)(5)(B) makes it a crime to “knowingly possess[ ] ... any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography” (emphasis added). On appeal, the defendant argued that the counts of possession were multiplicitous because the simultaneous possession of overlapping files on separate devices did not constitute distinct possession crimes under § 2252A(a)(5)(B). Hinkeldey, 626 F.3d at 1012–13. We held that § 2252A(a)(5)(B) permits a separate count for each type of material or storage device possessed. Id. at 1013. In so holding, we distinguished the language of § 2252A(a)(5)(B) from that of § 2252(a)(4)(B): “Unlike the term ‘any’ in § 2252A(a)(5)(B), the phrase '1 or more' in § 2252(a)(4)(B) arguably manifests a clear intention to include multiple materials in a single unit of prosecution.” Id. at 1014.

In addition to Hinkeldey, Emly points to two cases, one from the Second Circuit and the other from the First Circuit, that support his interpretation of § 2252(a)(4)(B): United States v. Polouizzi, 564 F.3d 142 (2d Cir.2009), and United States v. Chiaradio, 684 F.3d 265 (1st Cir.2012). In Polouizzi, the defendant was charged with eleven counts of possession under § 2252(a)(4)(B) for possessing eleven illegal image files, collectively found on three hard drives in two separate rooms. 564 F.3d at 146–48. The government argued that each computer file containing an image was a “matter” under the statute and “that the possession of each ‘matter’ is a separate violation of § 2252(a)(4)(B).” Id. at 155. The court held that § 2252(a)(4)(B) did not permit the conviction of the defendant on multiple possession counts under any interpretation of “matter.” Id. at 155 n. 4. The court concluded that “[b]ased on the clear language of the statute ... Congress intended to subject a person who simultaneously possesses multiple books, magazines, periodicals, films, video tapes, or other matter containing a visual depiction of child pornography to only one conviction under 18 U.S.C. § 2252(a)(4)(B).” Id. at 155. The court reached its conclusion by looking to the plain language of the statute and contrasting the term “1 or more” in § 2252(a)(4)(B) with the word “any.” Id. Further, the court pointed to § 2252(c)(1), which provides an...