United States v. Phillips

• Decision Date: 13 July 2021
• Docket Number: No. 18-11737,18-11737
• Citation: United States v. Phillips, 4 F.4th 1171 (11th Cir. 2021)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brandon Royce PHILLIPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

4 F.4th 1171

UNITED STATES of America, Plaintiff-Appellee,

v.Brandon Royce PHILLIPS, Defendant-Appellant.

No. 18-11737

United States Court of Appeals, Eleventh Circuit.

July 13, 2021

Nancy J. Hess, Robert G. Davies, U.S. Attorney's Office, Northern District of Florida, Pensacola, FL, Chris John Thielemann, U.S. Attorney's Office, Tallahassee, FL, Karen E. Rhew-Miller, Law Office of Karen E. Rhew-Miller, Fernandina Beach, FL, Zack Smith, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Florida, U.S. Attorney Service-Northern District of Florida, U.S. Attorney's Office, Northern District of Florida, Pensacola, FL, for Plaintiff-Appellee

Barbara Sanders, Law Office of Barbara Sanders, St. George Island, FL, for Defendant-Appellant.

Before JILL PRYOR and GRANT, Circuit Judges, and ROYAL,^*District Judge.

GRANT, Circuit Judge:

For two months, 33-year-old Brandon Phillips pretended to be a 17- or 18-year-old girl named "Katie Davis" as he communicated online with a 14-year-old boy.Over the course of their online relationship, Phillips sent sexually explicit videos of women to the boy and requested sexually explicit videos of him in return.He complied.But once the boy's family found out, Phillips was arrested and eventually convicted of three crimes, each involving sexual misconduct with a minor.

Phillips now challenges two of those three convictions.He first argues that the district court constructively amended his indictment on one of the charges.Because the indictment charged him with "knowingly and intentionally" causing a minor to engage in sexually explicit conduct for the purpose of producing a video, he says it was reversible error for the district court to instruct the jury that the government need not prove he knew the boy was a minor.We disagree.The statute Phillips was charged with violating does not require that he know his victim's age; the court, then, did not err in disregarding any language in the indictment that suggested otherwise.

Phillips also contends that he was improperly convicted and sentenced for both a crime and a lesser-included crime based on the same set of facts.There, we agree—possession of child pornography is a lesser-included offense of receiving child pornography, so it violated the Double Jeopardy Clause for him to be convicted of both.

I.

A boy we will call N.M. moved to Florida in August 2016, and turned to social media to "try to make friends."On one site, he met someone with the username "Owls."The boy accurately identified himself as a 14-year-old boy in his profile; Owls identified herself as a 17-year-old girl.Owls asked the boy to message her on Kik, another social media site, at the username "katie.davis840."The boy agreed, and created a Kik account where he found and began messaging katie.davis840.According to "Katie,"she was 18 years old, and her profile included a picture of a young female.

Soon after "Katie" and the boy began messaging on Kik, she started speaking to him in a sexually explicit manner."Katie" sent him videos of a female masturbating, and requested that he send videos of himself masturbating in return.The boy complied with her requests, making and sending about 30 sexually explicit videos during the two months they communicated.

Toward the end of those two months, the boy's family noticed that he was acting strangely with his cell phone.His cousin took the phone to look through it, and found "disturbing" videos the boy had made.When he alerted the boy's grandmother she was horrified, and told the boy's father about the phone's contents.The family wasted no time, and went to the Clay County Sheriff's Office the next day to report what they had found.

Law enforcement officers interviewed N.M. and forensically extracted the contents of his cell phone.The extraction turned up two communications with "Katie."The boy had apparently deleted—at "Katie's" request—the rest of their messages.The extraction also uncovered three videos of a female masturbating and 32 videos of the boy engaging in sexually explicit conduct.

Officers then subpoenaed Kik for information on the "Katie Davis" profile; the subpoena revealed the IP address used by the account.Law enforcement traced that IP address to a physical address in Panama City Beach.When they executed a search warrant for the residence there, officers found Phillips and seized his phone on the scene.After obtaining a separate warrant for the phone, the officers sought a detailed forensic examination.That examination revealed that the katie.davis840 Kik account, along with the email registered with that account, was on Phillips's phone.The examination revealed no pictures, videos, or messages to or from N.M.—but it did reveal a contact list that included the boy's Kik profile, indicating that N.M. and "Katie" had chatted.

A grand jury indicted Phillips on three counts, charging that he: (1)"did knowingly and intentionally use, persuade, induce, and entice a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct," in violation of 18 U.S.C. § 2251(a) and (e);(2)"did knowingly receive, and attempt to receive, material containing child pornography," in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1); and (3)"did knowingly possess, and attempt to possess, material containing child pornography," in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).

At trial, Phillips testified that he was innocently "role playing" when he posed as a 17- or 18-year-old female on Kik.His practice, he said, was to send videos of females masturbating in hopes that the recipient would "send something back."He admitted that he knowingly asked for sexually explicit videos and that he knowingly caused them to be made, but denied having any knowledge that his targets were under the age of 18.

Phillips also admitted to chatting with N.M. on Kik; in fact, he admitted that he asked the boy to make and send videos.He claimed, however, that he did not remember or recognize the sexually explicit videos of N.M. that the government entered into evidence.He also disputed that he knew the boy was a minor when they chatted.

After Phillips rested his case, the district court conducted a charge conference.It explained that, among other things, it intended to instruct the jury that the government need not prove that Phillips knew the age of the person in the video in order for him to be convicted on Count I. Phillips objected; he pointed out that although the statutehe was charged with violating, § 2251(a), did not include the word "knowingly," Count I of the indictment charged him with "knowingly and intentionally " using, persuading, inducing, and enticing a minor to engage in sexually explicit conduct for the purpose of producing visual depictions.He argued that the way the indictment was worded meant that this scienter requirement necessarily applied to every element of the crime.Because he had been relying on the indictment, he said, the jury instruction needed to affirm that he was guilty only if he knew the victim was a minor.But the government argued, and the district court agreed, that the words "knowingly and intentionally" in the indictment modified only the acts barred in the statute, and thus did not require that Phillips know the victim's age.There was no dispute about the scienter requirements for Count II and Count III.

In keeping with its conclusion, the court instructed the jury that Phillips could only be found guilty on Count I if he caused a person under the age of 18 to engage in sexually explicit conduct, if he did so for the purpose of having a video made of that conduct, and if the video had a sufficient connection to interstate commerce.The court added that the government did not need to prove that Phillips knew N.M. was under 18, but it did need to show that Phillips had a "definite aim" of causing the boy to engage in sexually explicit conduct and video himself engaging in that conduct.The jury found Phillips guilty on all three counts.

This appeal followed.

II.

We review whether a district court's jury instructions constructively amended the indictment de novo.United States v. Gutierrez , 745 F.3d 463, 473(11th Cir.2014).We review issues not raised before the district court for plain error.United States v. Bobb , 577 F.3d 1366, 1371(11th Cir.2009).

III.

A defendant can only be convicted of a crime charged in an indictment.This is a "fundamental principle," one based in the Fifth Amendment's grand jury guarantee.United States v. Keller , 916 F.2d 628, 633(11th Cir.1990).It would indeed be "fundamentally unfair to convict a defendant on charges of which he had no notice."Id.That's why the district court cannot "constructively amend" an indictment by changing the essential elements of a charged offense "to broaden the possible bases for conviction beyond what is contained in the indictment."United States v. Madden , 733 F.3d 1314, 1318(11th Cir.2013)(quotingKeller , 916 F.2d at 634 ).

Phillips contends that the district court violated his Fifth Amendment rights when it instructed the jury that it need not find that he knew his victim's age to find him guilty.He maintains that knowledge of his victim's age was an element of his indictment, so the district court's instruction impermissibly amended the indictment when it broadened the potential bases for conviction.But just because the indictment included the phrase "knowingly and intentionally" does not mean that the government charged Phillips with knowing his victim's age.Section 2251(a) does not require knowledge of age; his indictment, read in light of the statute, did not either.And because Phillips's indictment did not charge him with knowing his victim's age, the district court's jury instruction amended nothing at all.

When interpreting indictments in other contexts, we have said that we read them "as a whole" and give them a "common sense...