United States v. Pires

United States Court of Appeals
For the First Circuit

No. 10-1062

UNITED STATES OF AMERICA,

Appellee,

v.

JOHNNY PIRES,

Defendant, Appellant.
___________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

April 6, 2011

*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 SELYA, Circuit Judge. In this appeal, which follows a

conviction for attempted receipt and possession of child

pornography, defendant-appellant Johnny Pires claims (i)

insufficiency of evidence; (ii) error in the exclusion of proffered

expert testimony; (iii) prosecutorial misconduct; and (iv)

multiplicity of charges.

After careful consideration, we find none of these claims

persuasive and, accordingly, affirm the judgment of the district

court.

I. BACKGROUND

On March 19, 2008, a federal grand jury sitting in the

District of Massachusetts returned an indictment that charged the

appellant with two counts of attempted receipt of child

pornography, 18 U.S.C. § 2252(a)(2), (b)(1), and one count of

knowing possession of child pornography, id. § 2252(a)(4)(B). We

rehearse the relevant facts through the prism of the ensuing trial.

The government's case relied in large part on testimony

from agents of the Federal Bureau of Investigation (FBI). Byron

Mitchell, a member of the FBI's cyber crime unit, related that, on

December 19, 2006, he mounted an online undercover investigation.

To that end, he availed himself of LimeWire, a commercially

available peer-to-peer networking program that allows file-sharing

between unrelated computers. He entered a search term ("Lolita")

that he knew to be favored by individuals who fancied child

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pornography. His query returned a number of files available for

download, each associated with a particular Internet protocol (IP)

address.

Because some of the file names were suggestive of child

pornography, Mitchell activated LimeWire's "browse the host"

function, which allowed him to view all of the files available for

download from a particular user's "shared files" folder. Several

of the revealed files contained words that Mitchell, an experienced

agent, knew to be associated with child pornography. He downloaded

a number of those files from that user's folder and confirmed that

some appeared to contain child pornography. He then traced the

associated IP address directly to the appellant.

At that point, another FBI agent, Sarah De Lair, took

charge. After performing some preliminary investigation of her

own, she obtained a search warrant for the appellant's home. On

April 10, 2007, De Lair, accompanied by other law enforcement

personnel, executed the warrant.

De Lair testified that when she knocked on the door,

identified herself, and announced that she had a search warrant,

the appellant permitted entry. Following a protective sweep, De

Lair and another FBI agent, Bryan Zinn, conversed with the

appellant. De Lair explained that the agents would be searching

the premises for evidence of child pornography and advised the

appellant of his Miranda rights. See Miranda v. Arizona, 384 U.S.

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436, 444 (1966). The appellant replied that he understood his

rights and signed a written waiver to that effect.

De Lair proceeded to question the appellant. The

interview was not recorded, nor was the appellant ever asked to

sign a written statement. The agents' version of the interview

follows.

The appellant told De Lair that he, his sister, and his

fiancée all used the computers that were on the premises and that

these computers held a goodly amount of child pornography (at least

15 files). He initially stated that he did not intentionally

download any child pornography. He acknowledged, however, that he

had opened suspiciously titled files obtained through LimeWire

because he was curious about whether the file names reflected the

actual contents of the files.

He claimed that he had used the LimeWire program to

search for images of the World Trade Center. After downloading

some such images, he clicked on a link entitled "Vicki willing" and

watched a video of a young girl, eight to nine years of age, who

was naked and engaged in a sexual act with an adult. The girl, he

observed, was "not doing anything good." The appellant estimated

that he saw approximately five videos related to "Vicki willing."

In the course of the interview, the appellant admitted to

using search terms such as "Lolita" and "young preteen." He also

admitted that those searches yielded files that depicted

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prepubescent children, approximately seven or eight years old, "not

doing anything good." He acknowledged that he knew children were

involved in child pornography and that he could tell if someone was

less than 17 years of age. When De Lair showed him the titles of

the two files containing child pornography that Agent Mitchell had

downloaded and descriptions of their contents, the appellant stated

that he recognized the titles but not the descriptions. Queried

about whether he was "attracted" to child pornography, the

appellant said that he was uncomfortable with the term "attracted"

but admitted that he had been "interested" in child pornography

(specifically, images depicting seven-to-ten-year-old children) for

at least a year. Elaborating on this point, he noted that he

looked at pornographic images of children three or four times per

week and that he downloaded five to six such images once or twice

per week.

As fruits of the search, the agents seized two computers.

A forensic examination of one computer's hard drive revealed, among

other files containing child pornography in the appellant's

LimeWire shared files folder, the two videos that Agent Mitchell

had downloaded. These two video files, each of which forms the

basis for a separate count in the indictment, bore a creation date

of October 21, 2006.

Nearly a year after the search, Agent De Lair tried to

interview the appellant's sister at the sister's residence. By

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happenstance, she encountered the appellant, who told her that if

he had known either that it was wrong or that anyone was watching,

he would not have downloaded the files. Later, he left a voice

message for De Lair, in which he indicated that he had made a

mistake by having the materials on his computer. The government

introduced a recording of this voice message at trial.

The appellant testified in his own defense. His account

of these interactions diverged from the agents' accounts in some

respects. We summarize portions of his version of what he told the

agents.

The appellant maintained that he had used LimeWire to

search for adult pornography and sometimes would (inadvertently)

come across child pornography. If he opened a video that turned

out to be child pornography, he would click out of it. While he

admitted using search terms like "Lolita," he did not understand

them to be associated with child pornography. He viewed the video

entitled "Vicki willing" and clicked out of it. He did not,

however, delete it. He never searched for child pornography or

intentionally downloaded any child pornography.

The appellant did admit to having told the agents that

there was child pornography on his computer, but explained that

there were also other items on the computer that he did not want

and had not sought. He denied having said that he was interested

in child pornography. He had used LimeWire for only about a year,

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three or four times a week, and would download five or six "search

terms" per week,1 but without any intention of searching for, or

downloading, child pornography. He denied having told Agent De

Lair that he would not have downloaded the images in question had

he known either that it was wrong or that someone was watching.

Finally, he tried to explain away the "mistake" voicemail; he had

meant to say "I made a mistake by having the child pornography on

the computer, but not intentionally."

Faced with this chiaroscuro record, the jury found the

appellant guilty of one count of attempted receipt of child

pornography (count two) and one count of possession of child

pornography (count three), and acquitted him on the other attempted

receipt count (count one). Prior to the submission of the case to

the jury, the appellant had moved for a judgment of acquittal as to

count two. See Fed. R. Crim. P. 29(a). He renewed that motion

post-verdict, see Fed. R. Crim. P. 29(c), and he simultaneously

moved for a new trial, see Fed. R. Crim. P. 33(a). The district

court denied both motions, and on January 6, 2010, sentenced the

appellant to a five-year incarcerative term. This timely appeal

followed.

II. ANALYSIS

The appellant has briefed four claims of error. For ease

1
Although this phraseology seems odd, we think that the jury
reasonably could have inferred from it that the appellant
downloaded the results of five or six searches each week.

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in exposition, we divide our analysis into segments that correspond

to these claims. We start with the one claim that seeks acquittal

and then assay the three claims that seek the granting of a new

trial.

A. Sufficiency of the Evidence.

The appellant contends that, as to count two, the

evidence was insufficient to prove the offense's knowledge and

interstate commerce elements. We address these contentions

sequentially. First, however, we rehearse the standard of review.

We assess preserved challenges to evidentiary sufficiency

de novo, considering the evidence in the light most agreeable to

the verdict. United States v. Rodríguez-Vélez, 597 F.3d 32, 38

(1st Cir. 2010). Our appraisal is aimed at determining whether on

this view of the record a reasonable juror could conclude that the

government proved each element of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United

States v. Troy, 618 F.3d 27, 31 (1st Cir. 2010).

1. Knowledge. The appellant contends that the

government failed to introduce evidence sufficient to establish

that he knew, when he received the relevant video file, that it

depicted real minors engaged in sexually explicit conduct. This

contention operates at three different but overlapping levels.

First, the appellant tries to engraft an extra layer of

mens rea onto the offense. In his view, the government, by

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charging that he "knowingly attempted to receive" the images, had

to prove that he knew the character of the material at the very

moment of its acquisition. He insists that when he downloaded the

file, he was aware only of its title, and he refers to testimony

presented at trial for the proposition that titles do not always

reliably indicate a file's actual contents. The appellant believes

that this testimony demonstrates that he could not have known the

video's actual contents on the basis of its name alone and

therefore could not knowingly have attempted to receive it.

This argument is belied by the language of section

2252(a)(2), which criminalizes the knowing receipt of child

pornography. We simply do not see how incorporating the statutory

language into the charging document could have elevated the

necessary proof beyond the elements required by the statute itself.

This brings us to the second level of the argument. To

prove attempt, the government must show both that the accused

intended to commit the underlying substantive offense (here,

knowing receipt of child pornography) and that he took a

substantial step toward committing that crime. United States v.

Gobbi, 471 F.3d 302, 309 (1st Cir. 2006). But this does not mean

that the government bore a burden to prove each element of the

underlying offense. While the underlying offense in this case

requires the receipt of images of real-life minors engaged in

sexually explicit conduct, see United States v. McNealy, 625 F.3d

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858, 870 & nn.47-48 (5th Cir. 2010) (citing United States v. X-

Citement Video, Inc., 513 U.S. 64, 78 (1994)), the government in an

"attempt" case has no burden to prove that the appellant knew that

the downloaded file actually contained such images. Rather, the

government is required to prove that the appellant believed that

the received file contained such images. See United States v.

Bauer, 626 F.3d 1004, 1008 (8th Cir. 2010). No other view of the

relevant threshold of proof comports with the Supreme Court's

reasoning in United States v. Williams, 553 U.S. 285 (2008), in

which the Court explained that "[t]here is no First Amendment

exception from the general principle of criminal law that a person

attempting to commit a crime need not be exonerated because he has

a mistaken view of the facts." Id. at 304.

The third layer of the appellant's argument rests on the

district court's jury instructions. Contrary to what the statute

of conviction requires, the court told the jury that "the

government has to prove not just that the defendant voluntarily and

intentionally, not by mistake, received a depiction, a video, but

that he knew at the time of receipt that the production of that

video involved the use of a real minor and that the video showed a

real minor." This instruction plainly overstates the government's

burden.

In circumstances where, as here, a district court

overstates the government's burden of proof to the defendant's

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benefit in its charge to the jury, a reviewing court faced with a

challenge to the sufficiency of the evidence must measure that

challenge against the correct legal standard, not against the

erroneous standard set forth in the charge. See United States v.

Bayes, 210 F.3d 64, 69 (1st Cir. 2000). With the correct standard

as our metric, we conclude that the evidence, taken in the light

most agreeable to the verdict, is sufficient to ground the

conviction.

"[A] showing of scienter . . . can (and often will) be

made through circumstantial evidence." United States v. Hussein,

351 F.3d 9, 20 (1st Cir. 2003). Here, the jury heard testimony

from two FBI agents confirming that, by his own admission, the

appellant deliberately used search terms associated with child

pornography (such as "Lolita" and "young preteen") when trolling on

LimeWire. This evidence is significant because a defendant's use

of search terms associated with child pornography can support a

finding that he knew that the images retrieved contained child

pornography. See McNealy, 625 F.3d at 870-71. Such an inference

is strengthened in this case by the appellant's statement to the

agents that those searches yielded videos of children,

approximately seven or eight years old, "not doing anything good."

In addition, the appellant admitted to the agents that he had had

an interest in child pornography for about a year and that he had

looked at child pornography three or four times a week, downloading

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five to six images containing child pornography once or twice a

week. Nor was this all. The title of the file that underbraced

count two was highly suggestive of child pornography.2

Taking this tapestry of facts as a whole, we believe that

the jury reasonably could have inferred that the appellant, having

seen the name of the file, proceeded to download it; and that when

he did so, he was seeking to acquire child pornography. Thus, the

evidence supports a finding that the appellant acted "knowingly"

with respect to count two.

2. Interstate Commerce. The appellant's complaint that

the government failed to prove the "interstate commerce" element of

the offense of conviction — that is, that the video file he

attempted to receive traveled in interstate commerce — is squarely

foreclosed by circuit precedent. See United States v. Lewis, 554

F.3d 208 (1st Cir. 2009). In Lewis, we held that "the government

proved the images traveled interstate when it introduced evidence

that [the defendant] received images that were transmitted over the

Internet." Id. at 215. Given that the video file underlying count

two in this case was also transmitted over the Internet, the

holding in Lewis is of decretory significance.

For the most part, newly constituted panels in a federal

2
The file name was: "cp tvg 13 Bond 10-11-12Yo Childlover
Little Collection Video 0039 Girl-Vicky String Bikini Pthc 11Yo
Pedofilia.mpg."

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appellate court are bound by prior panel decisions closely on

point. Troy, 618 F.3d at 35; United States v. Rodríguez, 527 F.3d

221, 224 (1st Cir. 2008); United States v. Wogan, 938 F.2d 1446,

1449 (1st Cir. 1991). Although this permutation of the doctrine of

stare decisis does not constitute an "immutable rule," Carpenters

Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 142 (1st

Cir. 2000), it is subject to only a few "narrowly cabined

exceptions," Troy, 618 F.3d at 36; San Juan Cable LLC v. P.R. Tel.

Co., 612 F.3d 25, 33 (1st Cir. 2010). To be specific, a departure

from circuit precedent is warranted only where the previous holding

is "contradicted by controlling authority, subsequently announced

(say, a decision of the authoring court en banc, a Supreme Court

opinion directly on point, or a legislative overruling),"

Rodríguez, 527 F.3d at 225, or in "those relatively rare instances

in which authority that postdates the original decision, although

not directly controlling, nevertheless offers a sound reason for

believing that the former panel, in light of fresh developments,

would change its collective mind," Williams v. Ashland Eng'g Co.,

45 F.3d 588, 592 (1st Cir. 1995).

The appellant offers no serious claim that any of the

exceptions to the law of the circuit rule applies. While he points

to United States v. Schaefer, 501 F.3d 1197, 1200-01 (10th Cir.

2007), to suggest that our holding in Lewis is incorrect, the Tenth

Circuit's decision in Schaefer predates Lewis. Consequently, it

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does not trigger any of the isthmian exceptions to the law of the

circuit rule.

That ends this aspect of the matter. The holding in

Lewis — that evidence showing that images were received via the

Internet is sufficient to satisfy the interstate commerce element

under 18 U.S.C. § 2252(a)(2) — applies here. Hence, the evidence

of the appellant's use of the Internet to procure files via

LimeWire is sufficient to ground a finding that the interstate

commerce element of the offense was satisfied.

B. Exclusion of Expert Testimony.

During pretrial proceedings, the government moved to

exclude certain expert testimony that the appellant proposed to

present at trial. This testimony was to come from a forensic

psychologist, Dr. Carol Ball. Her report stated in pertinent part

that the appellant was "free of major mental illness, antisocial

personality traits, and sexual deviance" and was "not a pedophile

or sexual psychopath." The parties sharply disagreed about the

admissibility of this testimony: the appellant asserted that it was

relevant because it "demonstrates the absence of motive for the

alleged crimes"; the government asserted that it was not relevant

to any element of the charged crimes. The district court found

that the proffered testimony might be relevant but that its

relevance was "outweighed by the danger of confusion of the issues

or misleading the jury." Citing Federal Rule of Evidence 403, the

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court granted the motion in limine. It later denied a motion for

reconsideration. The appellant assigns error to the exclusion of

this testimony.

We review a trial court's decision to exclude evidence

for abuse of discretion. United States v. Stierhoff, 549 F.3d 19,

27 (1st Cir. 2008); United States v. Zaccaria, 240 F.3d 75, 78 (1st

Cir. 2001). This deferential standard normally precludes us from

substituting our judgment for that of the district court absent an

obvious mistake. Torres-Arroyo v. Rullán, 436 F.3d 1, 7 (1st Cir.

2006). Within this rubric, abstract legal questions are reviewed

de novo with the understanding that a material error of law is

always an abuse of discretion. United States v. Snyder, 136 F.3d

65, 67 (1st Cir. 1998).

In this case the expert witness, Dr. Ball, was prepared

to testify that the appellant did not have major mental illness,

antisocial personality traits, sexual deviance, or prurient

interest in children of any age. The appellant advances three

related objections to the exclusion of her testimony. He

asseverates that the court applied an incorrect legal standard,

that it undervalued the probative worth of the proffered evidence

while simultaneously overvaluing its potential as a source of jury

confusion, and that the order in limine infringed on his

constitutionally assured right to present a defense. We examine

each component of this asseverational array.

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 1. Rule 403 Standard. The appellant's plaint that the

district court failed to apply the correct legal standard does not

withstand scrutiny. This plaint focuses on language in Rule 403

that states: "Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury . . . ."

The appellant suggests that the district court skewed this standard

by considering whether the prejudicial effect of the evidence

merely outweighed its probative value, rather than whether the

former substantially outweighed the latter. This argument rests

almost exclusively on the court's statement, in the order granting

the motion in limine, that the evidence's "probative value is

outweighed by the danger of confusion of the issues or misleading

the jury." To the appellant's way of thinking, the court's failure

to use the modifying adverb "substantially" reflects that it

applied an incorrect standard.

We disagree. Elsewhere in the same order, the court

quoted the pertinent language of Rule 403, correctly describing the

"substantially outweighed" benchmark. Nothing in the court's

discussion indicates that it ignored that articulated standard when

balancing the competing interests and deciding to exclude Dr.

Ball's testimony. Where, as here, a court's fidelity to the proper

legal standard is fairly discernable from the whole of an order, we

will not infer the worst from a misspoken word or misplaced phrase.

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See, e.g., United States v. Pelletier, 469 F.3d 194, 204 (1st Cir.

2006); Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1088 (1st Cir.

1993). So long as its overall meaning is clear, each word of a

court's decision need not be precise to the point of pedantry.

2. Balancing. We turn next to the appellant's claim

that the district court miscalibrated the balance between probative

value and potential jury confusion. To begin, evidence that bears

on the question of motive ordinarily has some probative value in a

criminal case. See, e.g., United States v. MacPherson, 424 F.3d

183, 185 n.2 (2d Cir. 2005); United States v. Smith, 292 F.3d 90,

100 (1st Cir. 2002). The district court recognized this

connection, stating that evidence of the appellant's "lack of

interest in images of children makes it somewhat less likely that

he was searching for child pornography." On the same basis, the

proffered testimony had some probative value with respect to the

issue of intent. See United States v. Varoudakis, 233 F.3d 113,

120 (1st Cir. 2000) ("[P]roof of motive must be offered to show

some other element, for example, . . . the accused's requisite

mental state.")

Here, however, the appropriate analysis is more nuanced.

In enacting the federal child pornography statute, Congress

proscribed certain conduct without regard to the underlying motive.

See United States v. Dyer, 589 F.3d 520, 529 (1st Cir. 2009);

United States v. Matthews, 209 F.3d 338, 350-52 (4th Cir. 2000).

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Thus, other courts have upheld evidentiary rulings excluding

evidence of lack of motive in cases brought under the statute of

conviction. Of particular note is United States v. Wallenfang, 568

F.3d 649 (8th Cir. 2009), in which the Eighth Circuit upheld the

exclusion of expert testimony about the defendant's psychosexual

proclivities, offered to show lack of motive, because his motive

for possessing child pornography was "immaterial and irrelevant"

and the relevant inquiry was instead "whether, on their face, [the

pictures] appear to be of a sexual character." Id. at 660 (quoting

United States v. Kemmerling, 285 F.3d 644, 646 (8th Cir. 2002)).

In this case, the relevant images plainly appeared to be

child pornography. Moreover, the appellant admitted possessing

them. The key question, then, centered on his intent, that is,

whether he knowingly received and possessed them. Under these

circumstances, the proffered testimony was of diminished relevance.

The district court appears to have appreciated this distinction,

noting the likelihood that Dr. Ball's testimony, if admitted, might

well "shift attention away from [a] key question — whether

defendant had knowledge of the contents of the videos — to a wholly

irrelevant one — whether or not he is a pedophile." While the two

inquiries are more intertwined than the district court's analysis

might suggest, we agree that the proposed testimony was likely to

confuse the jury and divert its attention from the central question

in the case.

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 The fact that the excluded evidence took the form of

expert testimony figures conspicuously in the decisional calculus.

Qualified expert witnesses generally may offer opinion testimony if

that testimony "will assist the trier of fact to understand the

evidence or to determine a fact in issue." Fed. R. Evid. 702. But

expert testimony remains subject to exclusion under Rule 403. See

United States v. Montas, 41 F.3d 775, 783 (1st Cir. 1994). Indeed,

such evidence presents a special level of complexity in

constructing the balance between probative value and unfairly

prejudicial effect. This complexity arises out of the concern

that, because of an expert's stature qua expert, jurors may assign

more weight to expert testimony than it deserves. See United

States v. Rodríguez-Berríos, 573 F.3d 55, 72 (1st Cir. 2009).

Because such testimony can carry with it an unwarranted "aura of

special reliability and trustworthiness," United States v. Fosher,

590 F.2d 381, 383 (1st Cir. 1979), courts must guard against

letting it intrude in areas that jurors, by dint of common

experience, are uniquely competent to judge without the aid of

experts. This concern, where pertinent, should legitimately factor

into a trial court's Rule 403 analysis. See, e.g., Montas, 41 F.3d

at 784.

So it is here. The intent issue in this case presents

the type of judgment that jurors historically have made without the

assistance of expert testimony. It follows, we think, that the

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proffered testimony presented a special risk of jury confusion.

In arguing against exclusion, the appellant relies

heavily on United States v. Shay, 57 F.3d 126 (1st Cir. 1995), in

which we concluded that the district court erred in excluding,

under Rule 702, expert testimony from a psychiatrist who was

prepared to testify that the defendant suffered from a recognized

mental disorder that caused him to tell self-aggrandizing lies in

order to place himself at the center of attention. Id. at 129-30,

133-34. But Shay and the case at hand are not fair congeners.

First, the court in Shay focused on Rule 702, not Rule 403. Second

— and more important — the proffers in the two cases were quite

different. In Shay, the expert testimony, if believed, would have

exculpated the defendant, conclusively explaining away what

appeared to be damning admissions on which the government's case

relied. See id. at 133. In this case, however, the proffered

expert testimony was much more peripheral; at best, it may have

borne on the appellant's lack of motive and thus, indirectly, on

the question of whether he had the level of knowledge required by

the statute. A jury, accepting everything that Dr. Ball had to

say, could very well have convicted the appellant anyway.

"Where (as here) a piece of evidence is determined to be

relevant, the district court has wide discretion in steadying the

Rule 403 seesaw." Onujiogu v. United States, 817 F.2d 3, 6 (1st

Cir. 1987). "Only rarely — and in extraordinarily compelling

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circumstances — will we, from the vista of a cold appellate record,

reverse a district court's on-the-spot judgment concerning the

relative weighing of probative value and unfair effect." Freeman

v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988). Whether

the danger of jury confusion here substantially outweighs the

probative value of Dr. Ball's testimony is fairly debatable, but

the very closeness of the question favors the district court's

reconciliation of the competing centrifugal and centripetal forces.

Consequently, this is not one of the rare cases in which appellate

intervention is justified. Given the circumstances of this case,

the district court's ruling was within the universe of reasonable

decisions and, thus, was not an abuse of discretion.

3. Constitutional Claim. It is a bedrock principle that

a criminal defendant's right "to offer witnesses in his defense is

a fundamental component of due process." United States v. Brown,

500 F.3d 48, 57 (1st Cir. 2007) (citing Washington v. Texas, 388

U.S. 14, 19 (1967)). But "the mere assertion of that right does

not automatically and inevitably ensure the admissibility of the

proffered testimony." Id. (citing Taylor v. Illinois, 484 U.S.

400, 414-15 (1988)). In particular, the right to present a defense

does not trump valid rules of evidence.

Here, our conclusion that the district court did not

abuse its discretion in excluding the proffered expert testimony

undermines the appellant's constitutional claim. This exclusionary

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decision fell within the ambit of discretion afforded under Rule

403. The appellant has not developed any argument that

meaningfully distinguishes his constitutional claim from his more

generic assertion, previously rejected, that the district court

abused its discretion in excluding Dr. Ball's testimony. Nor does

he argue that Rule 403 itself offends the Constitution.

To say more about this claim would be supererogatory. We

hold, without serious question, that the exclusion of the evidence

did not abridge the appellant's constitutional right to present a

defense. See Rodríguez-Berríos, 573 F.3d at 72 n.16.

C. Prosecutorial Misconduct.

The appellant argues that prosecutorial misstatements

during closing argument entitle him to a new trial. He lodged

contemporaneous objections to only two of the statements that he

identifies. As to those two statements, our review is de novo.

United States v. Ayala-García, 574 F.3d 5, 16 (1st Cir. 2009). The

remainder of the statements engender review for plain error.

United States v. Sánchez-Berríos, 424 F.3d 65, 73 (1st Cir. 2005).

We therefore analyze the statements in two groups.

1. Preserved Claims. During the summation, the

appellant objected to the following statement by the prosecutor:

[I]n this case knowing possession is
essentially conceded. In the opening
statement by defense counsel and in
defendant's own words, he told you he knew he
had child pornography on his computer.

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The appellant protests that this assertion erroneously equates

"knowing" in the colloquial sense of "being aware" with the legal

definition that applies to the charges brought in this case.

The prosecutor's statement must be evaluated in

conjunction with the law applicable to the case. To be found

guilty of knowing possession, an individual need only have known

that there was child pornography on his computer yet declined to

delete it. United States v. Carani, 492 F.3d 867, 875 (7th Cir.

2007). He need not know the material's character at the moment

that he downloads it, as long as he thereafter learns its character

and nevertheless retains it. Id. Evidence of a defendant's

awareness that computer files contain child pornography is adequate

to show that he knowingly possessed that material. United States

v. Hilton, 257 F.3d 50, 54 (1st Cir. 2001).

In the instant case, the appellant admitted that he was

aware that there were files containing child pornography on his

computer and that at least some of them had not been deleted. The

prosecutor's statement was, therefore, an accurate rendition of

both the law and the record. Consequently, the district court did

not err in overruling the appellant's objection to it.

The appellant also objected to the prosecutor's assertion

that the appellant told the FBI agents "that he viewed five 'Vicki

willing' files." He protests that this statement was inconsistent

with Agent De Lair's testimony that the appellant had stated that

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"there were approximately five videos associated with the 'Vicki

willing' link." That testimony, the appellant says, did not

clearly indicate that he actually viewed the videos. The

appellant's complaint, however, overlooks entirely testimony from

Agent Zinn, who stated that the appellant "estimated that he saw

about — approximately five videos that were related to 'Vicki

willing.'" Agent Zinn's testimony made multiple references to

videos and images that the appellant told him that he "saw" and

included descriptions of the contents of these files, indicating

that the appellant had actually viewed them. The prosecutor's

statement regarding the "Vicki" videos was thus a fair

characterization of the agents' testimony, taken in context.

Viewed against this backdrop, the appellant's objection

was appropriately overruled.

2. Unpreserved Claims. We can deal swiftly with the

remainder of the challenged statements (which we review only for

plain error). To establish plain error, an appellant must make

four showings: "(1) that an error occurred (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity, or

public reputation of judicial proceedings." United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001). He must satisfy all of

these requirements in order to obtain relief. Sánchez-Berríos, 424

F.3d at 73. This is a daunting standard: "under plain error

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review, we have leeway to correct only the most egregious of

unpreserved errors." Id.

When determining whether alleged prosecutorial

misstatements sink to the level of plain error, we evaluate the

statements within the context of the case as a whole. United

States v. Morales-Cartagena, 987 F.2d 849, 854 (1st Cir. 1993). We

will intervene only if a statement "so poisoned the well that the

trial's outcome was likely affected." United States v. Taylor, 54

F.3d 967, 977 (1st Cir. 1995) (quoting United States v. Mejia-

Lozano, 829 F.2d 268, 274 (1st Cir. 1987)). "We are guided in

making this determination by a number of factors, including the

frequency and deliberateness of the prosecutor's comments, the

strength and clarity of the trial judge's instructions, and the

strength of the government's case against the defendant." Morales-

Cartagena, 987 F.2d at 854.

We need not recount in detail the statements about which

the appellant now complains. For present purposes, it suffices to

say that we have reviewed each of them in the context of the record

as a whole. Most involve instances in which the prosecutor asked

jurors to draw inferences from the evidence. It is eminently

proper for a prosecutor — like any other lawyer — to attempt to

persuade the jury to draw reasonable inferences favorable to her

case. United States v. O'Shea, 426 F.3d 475, 485 (1st Cir. 2005);

United States v. Hamie, 165 F.3d 80, 84 (1st Cir. 1999). With one

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possible exception, the challenged statements fell within this safe

harbor.

The only statement that requires specific comment

involves a misquotation of the appellant's voicemail message. The

prosecutor told the jury that in this message the appellant said,

"I got caught. I'm sorry." Those precise words were never spoken.

At best the prosecutor's account was a rough paraphrase of what the

appellant had said.

There is nothing in the record, however, to indicate that

this misquotation was deliberate. Moreover, the likelihood of harm

was minuscule. A recording of the voicemail message was introduced

into evidence, and the jury took it into the jury room. This is

particularly important because the court instructed the jurors that

the statements of counsel were not evidence but, rather, that their

recollection of the evidence, not the lawyers' recollections,

should control. We have noted before, and today reaffirm, that

such a prophylactic instruction is a significant safeguard against

an advocate's tendency to confuse what a witness actually said with

what he wished the witness had said. See, e.g., United States v.

Ortiz, 447 F.3d 28, 36 (1st Cir. 2006); Morales-Cartagena, 987 F.2d

at 855.

In the circumstances of this case, we discern nothing

approximating plain error. There is no realistic possibility that

this isolated comment made the slightest difference in the outcome.

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 D. Multiplicity.

Finally, the appellant posits that he is entitled to a

new trial on count two because counts one and two of the indictment

were multiplicitous. Specifically, he says that the government

failed to offer evidence to show that the two video files alleged

to have been received on or about October 21, 2006 (each of which

was the basis of a discrete count) were downloaded in separate and

distinct transactions. Assuming for argument's sake that this

challenge remains open,3 it fails on the merits.

"A district court's disposition of a Rule 33 motion for

a new trial in a criminal case is ordinarily a 'judgment call.'"

United States v. Connolly, 504 F.3d 206, 211 (1st Cir. 2007)

(quoting United States v. Maldonado-Rivera, 489 F.3d 60, 65 (1st

Cir. 2007)). Such a ruling engenders review for abuse of

discretion. Id. Here, however, the appellant's thesis depends on

an abstract question of law, which we review de novo. See United

States v. Huddleston, 194 F.3d 214, 218 (1st Cir. 1999); see also

Snyder, 136 F.3d at 67.

The rule against multiplicitous prosecutions is grounded

in the Double Jeopardy Clause, which "protects against multiple

punishments for the same offense." Illinois v. Vitale, 447 U.S.

3
The government asserts that this challenge was waived by the
appellant's failure to attack the indictment prior to trial. See
Fed. R. Crim. P. 12(b)(3)(B). We take no view on the waiver
question.

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410, 415 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711,

717 (1969)). When an indictment includes multiple counts charging

a violation of the same statutory provision and a claim of

multiplicity is raised, an inquiring court must determine whether

the facts undergirding each count can be treated as a distinct unit

of prosecution. See United States v. Hinkeldey, 626 F.3d 1010,

1013 (8th Cir. 2010); cf. United States v. LeMoure, 474 F.3d 37, 43

(1st Cir. 2007) (observing, with respect to claim of multiplicity,

that "[m]ultiple punishments for the same offense . . . are

permissible if the legislature so intended"). "The critical

inquiry is whether Congress intended to punish each statutory

violation separately." Jeffers v. United States, 432 U.S. 137, 155

(1977).

Counts one and two both charged the appellant with

attempted receipt of child pornography in violation of 18 U.S.C.

§ 2252(a)(2), which makes it unlawful to "knowingly receive[] . . .

any visual depiction" involving "the use of a minor engaging in

sexually explicit conduct."4 The record contains no evidence that

might establish that the two files at issue here were received in

separate and distinct transactions. The government appears to

concede that the allowable unit of prosecution for the appellant's

4
Each count also mentions 18 U.S.C. § 2252(b)(1), which
criminalizes the attempted violation of section 2252(a)(2). This
additional reference is of no consequence in the multiplicity
analysis.

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attempted receipt of videos containing child pornography, on a

single day and without proof of multiple transactions, is one, not

two. See United States v. Polouizzi, 564 F.3d 142, 158 (2d Cir.

2009) (concluding that the rule of lenity requires that a person

who receives multiple prohibited images in a single transaction can

only be charged with one violation under section 2252(a)(2)).

Thus, there is a credible basis for a multiplicity claim.

The potential for such a claim dissipated, however, once

the jury acquitted the appellant on count one and convicted him on

count two. This split decision eliminated any prospect of double

jeopardy. That makes a dispositive difference.

The appellant attempts to blunt the impact of this split

decision by suggesting that, had the district court recognized the

multiplicity concern when that concern was first voiced (at the

close of the government's case in chief), the government would have

been compelled to elect between counts one and two — and it might

have guessed wrong as to which count it should jettison. This

suggestion misses the mark.

There is no inflexible rule that the exclusive remedy for

multiplicitous counts is election between them. See Ball v. United

States, 470 U.S. 856, 864 (1985). Requiring election is one

option, but not the only option; the court may, for example, simply

vacate both the conviction and the sentence as to all but one

count, essentially merging the offending counts. See, e.g., id.;

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United States v. Lilly, 983 F.2d 300, 306 (1st Cir. 1992). This

flexible approach makes good sense because "the Double Jeopardy

Clause does not protect against simultaneous prosecutions for the

same offense, so long as no more than one punishment is eventually

imposed." United States v. Josephberg, 459 F.3d 350, 355 (2d Cir.

2006) (per curiam).

In the case at hand, the appellant was convicted and

sentenced on only one of the two purportedly multiplicitous counts.

Consequently, his rights under the Double Jeopardy Clause were not

infracted. See id. That fact is fatal to the thesis that he

advances here: a multiplicity claim is necessarily premised on

double jeopardy concerns, and where such concerns have been

eliminated, the multiplicity claim evaporates. The court below did

not err in denying the appellant's motion for a new trial

predicated on this ground.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the appellant's challenges come to naught.

Affirmed.

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