In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3245
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES F AULDS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-CR-20004—Michael P. McCuskey, Chief Judge.
A RGUED A PRIL 19, 2010—D ECIDED JULY 8, 2010
Before B AUER and S YKES, Circuit Judges, and G RIESBACH,
District Judge.
G RIESBACH, District Judge. On February 29, 2008, fol-
lowing a four-day trial, a jury found James Faulds, Jr.,
guilty of one count of distribution of child pornography
(“Count 1”) and a separate count of possession of such
Hon. William C. Griesbach, District Judge for the Eastern
District of Wisconsin, sitting by designation.
2 No. 09-3245
material (“Count 2”). The district court sentenced Faulds
to a term of 240 months on Count 1 and a consecutive
term of 120 months on Count 2 for a total of 360 months.
Faulds argues on appeal that the possession charge
was included within the distribution charge and his
conviction on both counts therefore violates the Double
Jeopardy Clause of the Constitution. Because Faulds
did not raise the issue in the trial court, the issue before
us is whether his conviction on both counts constitutes
plain error. We find no error and affirm his conviction.
I. BACKGROUND
On July 16, 2006, while investigating in an undercover
capacity crimes of child exploitation, James Mooney, a
special agent with U.S. Immigration and Customs En-
forcement (“ICE”), logged into an Internet chat room
called “aLLgirls.” Special Agent (“S.A.”) Mooney knew
from previous experience that people used that chat room
to trade images of preteen females engaged in sexually
explicit conduct. When Mooney entered the room,
Faulds’ computer was already logged onto the same
chat room under the screen name “Wscrypt.”
S.A. Mooney made a direct, “client-to-client” connection
with Faulds’ file server, which had 2,751 files available,
consisting of 1.22 gigabytes of images and 34 folders. One
of the folders labeled “Mar” contained a six-page listing
of images. Mooney knew, also from his previous experi-
ence, that “Mar” contained images of child pornography.
He downloaded 12 images from the “Mar” folder and a
movie from a folder labeled “Girlvids.” The “Mar” images
No. 09-3245 3
depicted a 6- or 7-year-old girl being sexually abused.
The movie showed sexual abuse of an 11- or 12-year-
old girl.
The software S.A. Mooney was using allowed him to
determine the IP address for Wscrypt and the service
provider for the account. In response to a subpoena to
the service provider, Mooney learned Faulds’ name and
that he lived in Rankin, Illinois. Mooney, who was sta-
tioned in Portland, Oregon, then forwarded the results
of his investigation to ICE Special Agent Michael
Mitchell in Springfield, Illinois.
On August 18, 2006, S.A. Mitchell and other law en-
forcement agents in central Illinois executed a search
warrant on the home where Faulds was living with
his parents. From his bedroom, they seized computers,
CDs, and a DVD that contained Faulds’ extensive por-
nography collection, much of which included child por-
nography. In the course of their search, the officers
also spoke with Faulds who admitted that he collected
child pornography and shared it with others through file-
sharing computer software.
From their examination of the material seized from
Faulds’ bedroom, law enforcement determined that the
various items contained a total of 9,869 pornographic
images of children and 719 pornographic movies
involving children. The “Mar” folder alone contained
more than 300 pornographic pictures of the same 6- or 7-
year-old girl. In addition, the 12 images that S.A. Mooney
had downloaded from Faulds’ server on July 16 were
still on Faulds’ computer when agents seized it on
August 18, 2006.
4 No. 09-3245
In January 2007, a grand jury returned a two-count
indictment charging Faulds with distributing a visual
depiction of a minor engaged in sexually explicit
conduct on July 16, 2006, in violation of 18 U.S.C.
§ 2252(a)(2), and possessing material containing a visual
depiction of such a minor on August 18, 2006, in viola-
tion of 18 U.S.C. § 2252(a)(4). Although counsel was
appointed to represent him, Faulds announced prior to
jury selection on the first day of trial that he intended
to represent himself. After insuring that Faulds under-
stood the right he was waiving and was competent to
do so, the district court accepted his waiver but di-
rected his attorney to continue as stand-by counsel.
Over the course of the trial, in addition to the testi-
mony of S.A. Mooney and S.A. Mitchell, the government
introduced a number of exhibits, including the images
and movie that S.A. Mooney received after remotely
accessing Faulds’ computer from Portland. Faulds’ father
testified about his son’s computer knowledge and his
exclusive Internet access in their home, and a local detec-
tive testified about Faulds’ admissions about his posses-
sion and distribution of child pornography. The com-
puters, CDs, and DVD seized from Faulds’ bedroom
were also offered and received. The government briefly
published to the jury the 12 images and the movie
S.A. Mooney received. It also published a few additional
images S.A. Mitchell found on Faulds’ computers and
CDs. Other depictions were described to the jury.
For his defense, Faulds denied that he had made any
inculpatory statements to law enforcement and denied
No. 09-3245 5
knowledge of the child pornography found on his com-
puter. Faulds theorized that someone had accessed his
computer remotely, uploaded child pornography to
the computer’s hard drive, and burned pornographic
images to a CD in the computer’s CD tray. The jury
apparently did not believe Faulds, and after a brief de-
liberation, returned a verdict of guilty as to each count.
At sentencing, the trial court calculated an advisory
sentence range of 360 months to life under the United
States Sentencing Guidelines. In order to reach the low
end of the advisory range, the court imposed the maxi-
mum terms on each count and ordered that they be
served consecutively. Faulds now argues that his con-
viction on both counts violates the Double Jeopardy
Clause of the Fifth Amendment.
II. DISCUSSION
As noted above, because Faulds did not raise his
double jeopardy defense in the district court, this Court
reviews his claim for plain error. Fed. R. Crim. P. 52(b);
United States v. Van Waeyenberghe, 481 F.3d 951, 958 (7th
Cir. 2007). “Under the plain error standard, the party
asserting the error must establish (1) that there was in
fact an error; (2) that the error was plain; and (3) that the
error affects substantial rights.” United States v. Van Allen,
524 F.3d 814, 819 (7th Cir. 2008) (internal quotations
omitted). Moreover, even where plain error is found,
the defendant is not automatically entitled to relief. The
relief afforded by Rule 52(b) is discretionary, and “[w]e
will not exercise our discretion to consider the error
6 No. 09-3245
unless it ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’ ” Id. (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)). In this
case we conclude that Faulds’ appeal fails at the first
step: there was no error, plain or otherwise.
The Double Jeopardy Clause provides that no person
shall “be subject for the same offense to be twice put
in jeopardy of life or limb.” U.S. C ONST. amend. V. By its
terms, the Clause protects an individual from “being
subjected to the hazards of trial and possible conviction
more than once for an alleged offense.” Green v. United
States, 355 U.S. 184, 187 (1957). However, the Double
Jeopardy Clause has long been construed by the Court to
also bar multiple punishments for the same offense in a
single trial absent legislative intent to the contrary. Mis-
souri v. Hunter, 459 U.S. 359, 366 (1983). The test used to
determine whether the same act or conduct constitutes
one offense or two is the Blockburger test: “where the
same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which
the other does not.” Blockburger v. United States, 284 U.S.
299, 304 (1932). If under this test the two charged offenses
constitute only one offense in fact (usually because one
is a lesser included offense of the other), conviction and
sentence for only one is generally permitted. Rutledge v.
United States, 517 U.S. 292, 297 (1996). This result follows
from the presumption that a legislature does not intend
to impose two separate punishments for the same
offense. Id.; see also United States v. Pao Xiong, 595 F.3d 697,
No. 09-3245 7
698 (7th Cir. 2010) (“When the two offenses are effec-
tively different, we presume Congress intended separate
punishments for the multiple offenses. When they are
effectively the same, we presume Congress intended
only one punishment.”).
Relying primarily on United States v. Schales, 546 F.3d
965 (9th Cir. 2008), Faulds argues that under the Block-
burger test distribution of child pornography in violation
of 18 U.S.C. § 2252(a)(2) and possession of the same
material in violation of 18 U.S.C. § 2252(a)(4)(B) con-
stitute a single offense. As a matter of law, he argues,
possession of child pornography is a lesser included
offense of its distribution. It thus follows, he contends,
that conviction for only one of the two offenses is
permitted and one of his sentences must be vacated.
In Schales the Ninth Circuit held that the defendant’s
convictions for both receiving and possessing mate-
rial involving the sexual exploitation of minors under
the same statute violated the Double Jeopardy Clause of
the Fifth Amendment and remanded the case to the
district court with instructions to vacate one of the con-
victions. Id. at 977. Applying the Blockburger test, the
Schales Court held that possession of material involving
the sexual exploitation of minors in violation of 18 U.S.C.
§ 2252(a)(4)(B) is a lesser included offense of receipt of
the same material in violation of 18 U.S.C. § 2252(a)(2).
See also United States v. Ball, 470 U.S. 856, 862 (1985)
(“[P]roof of illegal receipt of a firearm necessarily
includes proof of illegal possession of that weapon.”).
Schales thus held that “while the government can indict
8 No. 09-3245
a defendant for both receipt and possession of sexually
explicit material, entering judgment against him is
multiplicitous and a double jeopardy violation when it
is based on the same conduct.” 546 F.3d at 978; see also
United States v. Davenport, 519 F.3d 940 (9th Cir. 2008)
(holding that possessing child pornography contrary to
18 U.S.C. § 2252A(a)(5)(B) is lesser included offense
of receipt of child pornography contrary to 18 U.S.C.
§ 2252A(a)(2)).
Although Faulds was convicted of possession and
distribution of material involving a minor engaged
in sexually explicit conduct, as opposed to possession
and receipt of such material, he argues that the same
conclusion follows. Just as one must possess such mate-
rial in order to receive it, so also one must be in pos-
session of it in order to distribute it to another.
Faulds argues that his convictions for distributing and
possessing child pornography are based on the same set
of operative facts. He contends that the government
failed to differentiate at trial the images he was charged
with distributing from those he was charged with pos-
sessing. Indeed, Faulds notes that the prosecutor intro-
duced the series of images that S.A. Mooney downloaded
on July 16, 2006, exhibits 1J through 1U and 1V, and
then established that these same images were found on
the computers seized from Faulds’ home a month later
when S.A. Mitchell executed the search warrant. Because
the government did not specify which images Faulds
was charged with simply possessing and which he was
charged with distributing, Faulds argues that the jury
likely convicted him of possessing the same images that
No. 09-3245 9
he was also found to have distributed. And since under
the Blockburger test, possession of child pornography
is a lesser included offense of distribution of child pornog-
raphy, Faulds claims his conviction for both cannot stand.
The obvious defect in Faulds’ argument is that the
two convictions do not rest on the same set of operative
facts. Count 1 of the indictment charged Faulds with
distributing material involving the sexual exploitation
of children to S.A. Mooney on July 16, 2006, whereas
Count 2 was based on Faulds’ possession of such
material more than a month later on August 18, 2006,
when S.A. Mitchell executed a search warrant on his
home and seized his computers and related devices,
along with the CDs and DVD, on which his entire col-
lection was stored. Even assuming the jury convicted
Faulds of both distribution and possession based solely
on the same images (which seems doubtful given the
evidence presented), the fact that the distribution count
was based on events that transpired more than a
month before the events giving rise to the possession
count is fatal to Faulds’ claim that he is being punished
twice for the same offense. The crime of distributing
the contraband material was complete when S.A. Mooney
downloaded the twelve images and movie containing
child pornography from Faulds’ server on July 16. The fact
that he continued to possess those and other images
thereafter constitutes a separate crime.
In arguing to the contrary, Faulds fails to distinguish
between contraband in the form of a tangible object,
such as a gun or illegal drugs, from child pornography
10 No. 09-3245
which today almost always consists of intangible
images created and transmitted using digital technology.
When the contraband is a tangible object, like illegal
drugs, distributing the contraband necessarily means
giving up possession, i.e., transferring it to another. Once
it is distributed, the contraband is no longer possessed,
and its possession prior to distribution is implicit in the
distribution itself. The same is not true, however, with
respect to distribution of digital depictions of minors
being sexually exploited. The transmission of such
material over the Internet is in effect the transmission of
a copy, allowing the owner to retain the original on his
own computer. Thus, Faulds could continue to possess
the digital images on his own computer even after he
had distributed identical images to S.A. Mooney,
leaving him free to view it himself or distribute it to
others. Faulds’ continued possession of the material after
his distribution of a series of images to S.A. Mooney
therefore constitutes a separate and distinct crime. No
double jeopardy violation has been shown.
This Court rejected a similar contention in United States
v. Snyder, 189 F.3d 640 (7th Cir. 1999). There, the
defendant was charged with separate counts of receipt
and distribution of child pornography in violation of
18 U.S.C. § 2252(a)(2), and a third count of possession
of child pornography with intent to sell in violation of
18 U.S.C. § 2252(a)(3)(B). On appeal, the defendant
argued that two of the three counts should have been
dismissed for multiplicity because all three charged him
with different methods of committing the same offense.
Convictions on all three counts, he argued, violated the
No. 09-3245 11
Double Jeopardy Clause. Id. at 646-47. Noting that
the indictment alleged that the violations occurred over
a nine-month period and that the government had pre-
sented evidence that Snyder had committed numerous
separate acts during this period, the Court found no
violation. “The Double Jeopardy Clause is not impli-
cated when multiple separate violations of the same
provision are charged in multiple counts.” Id. at 647.
The same conclusion follows here. Faulds’ two convic-
tions are based on different acts that occurred over a
period of more than a month. “The Blockburger test
is implicated only ‘where the same act or transaction
constitutes a violation of two distinct statutory provi-
sions.’ ” Schales, 546 F.3d at 978 (quoting Blockburger, 284
U.S. at 304.). It has no application to the facts of this
case. Even if it is ordinarily true that to distribute some-
thing one must also possess it, it does not follow that
one must possess it a month after the distribution is
complete. Congress intended to punish possession of
child pornography as well as distribution, and Faulds’
continued possession of the pornography was an inde-
pendent crime subject to sanction. The fact that he hap-
pened also to distribute it a month earlier does not
insulate him from liability for continued possession a
month later. Faulds’ convictions are therefore affirmed.
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