UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4938
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL NICHOLAS BUCZKOWSKI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. James C. Fox, Senior
District Judge. (5:08-cr-00159-F-1)
Argued: September 20, 2011 Decided: December 20, 2011
Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. David A.
Bragdon, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Daniel Buczkowski was convicted of one count of possessing
child pornography, see 18 U.S.C. § 2252(a)(4)(B), and twenty-
seven counts of transportation of child pornography in
interstate or foreign commerce, see 18 U.S.C. § 2252(a)(1).
Buczkowski appeals, challenging the convictions and sentences
imposed on the transportation counts only. While we find the
government’s evidence sufficient to establish that Buczkowski
transported child pornography, that evidence established only a
single act of transportation. Accordingly, we affirm the
conviction and sentence on the first transportation count,
vacate the remaining transportation convictions and sentences,
and remand for resentencing.
I.
After retiring from the Army, Buczkowski went to work as a
truck driver for Kellogg, Brown & Root (“KBR”), a military
contractor. Buczkowski worked for KBR in Iraq from November
2004 through February 2006 and from December 10, 2006 through
March 29, 2007. Buczkowski had a password-protected laptop
computer that he used at home and took with him to Iraq. The
evidence presented at trial established that when he was in
Iraq, his computer was often in a shared lounge space and was
sometimes used by people other than Buczkowski.
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Buczkowski was injured on March 21, 2007. He was sent to a
clinic in Kuwait for medical evaluation, where it was determined
that he should return to the United States for treatment.
Buczkowski left from Kuwait, without returning to the base in
Iraq, and arrived in Fayetteville, North Carolina, on March 29,
2007. KBR later shipped Buczkowski’s personal effects to him;
the shipment arrived around the first week of May 2007.
On May 8, 2007, Buczkowski took his laptop to be repaired.
While repairing the computer, the technician found child
pornography on the computer and called the police. Twenty-seven
images qualifying as child pornography were found on the
computer, all of which had been loaded onto the computer on
January 4, 2007, when Buczkowski was in Iraq. Buczkowski was
indicted on one count of possession of child pornography and
twenty-seven counts (one for each image) of transportation of
child pornography.
A jury convicted Buczkowski of all counts. The district
court sentenced him to 240 months’ imprisonment on the first
transportation count, a consecutive 240 months’ on the second
transportation count, and concurrent sentences on the remaining
transportation counts.
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II.
Section 2252(a) prohibits “knowingly transport[ing] or
ship[ping] [child pornography] using any means or facility of
interstate or foreign commerce or in or affecting interstate or
foreign commerce by any means.” 18 U.S.C. § 2252(a)(1). At
trial, the government sought to prove that Buczkowski
transported the child pornography by bringing the computer with
him when he returned from Iraq at the end of March. Buczkowski
contended that he had no knowledge the child pornography images
were on his computer and that he did not bring the computer with
him when he returned from Iraq. On appeal, Buczkowski concedes
the sufficiency of the evidence showing that he knowingly
possessed the child pornography, but he argues that the
government’s evidence was insufficient to establish that he
transported the pornography by bringing the laptop with him when
he returned from Iraq.
When considering the sufficiency of the evidence supporting
a criminal conviction, we must view “the evidence in the light
most favorable to the government, assuming its credibility, and
drawing all favorable inferences from it.” United States v.
Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011), petition for
cert. filed, (U.S. Oct. 4, 2011) (No. 11-6757). We must affirm
the jury’s verdict “if any rational trier of fact could have
found the essential elements of the crime charged beyond a
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reasonable doubt.” Id. In our view, the government presented
sufficient evidence, both direct and circumstantial, from which
the jury could have rationally concluded that Buczkowski
transported the computer.
The direct evidence came through the testimony of Erika
Pennell, the niece of Buczkowski’s wife. Pennell began living
with the Buczkowskis when she was sixteen, and she and her young
daughter were living with the Buczkowskis in March 2007 when
Buczkowski returned from Iraq. Pennell and Buczkowski began a
sexual relationship at some point, and the laptop contained
pictures of them engaging in sexual acts. Some of the pictures
of Pennell and Buczkowski were included in two photo collages
found on the laptop (J.A. 188-89, 283-84); the collages also
contained some of the child pornography images at issue in this
case, as well as images of adult men and women engaged in sexual
acts. The collages were created on January 8, 2007, and January
27, 2007, when Buczkowski was in Iraq. (J.A. 185-86)
On direct examination, the government asked Pennell if she
was living in the house when Buczkowski returned in March 2007.
Her answer was, “Yes, I was.” (J.A. 282) The government then
asked, “And did he bring this laptop computer with him?” Her
answer was an unqualified, “Yes, he did.” (J.A. 282) Pennell’s
testimony, standing alone, would thus seem to be sufficient to
establish that Buczkowski transported the laptop. Buczkowski,
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however, argues that his cross-examination of Pennell
“clarified” that testimony and established that she did not see
the computer until May, when the KBR shipment arrived.
Buczkowski points to the following exchange between his
attorney and Pennell as providing the “clarification” of
Pennell’s testimony:
Q. Now, you said he brought his computer back with
him?
A. Yes.
Q. And did you see the bag it came in?
A. No, I saw the computer.
Q. And he was using it while he was there at the end
of March?
A. No, he plugged it into the Internet and it
crashed, it wouldn’t even come up.
Q. So, when did you see him using it?
A. I didn’t say I saw him using it, I said I saw the
computer.
Q. Was it in April you saw it? Was it in May you saw
it?
A. I saw it when he came back. He was with it
sitting in the chair in the living room hooking it up
to the Internet and when he hooked it up, it started
to do some kind of -- type of download and it crashed.
He could not even turn it on.
Q. Was it the same day he came in?
A. I don’t know.
(J.A. 297) Because Buczkowski took the laptop for repair in
early May, Buczkowski argues that Pennell’s testimony, “taken in
context,” Brief of Appellant at 22, establishes that Pennell did
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not see the laptop until May, after the KBR shipment arrived.
We disagree.
Buczkowski’s claim is dependent on several unstated
assumptions -- that the only time Pennell saw the computer was
when Buczkowski discovered the problem with the computer; that
Buczkowski discovered the problem as soon as he received the
computer; and that he took the computer to be repaired as soon
as it crashed. The evidence presented at trial, however, did
not compel the jury to reach those conclusions. The jury could
reasonably have concluded that Buczkowski tried to use the
laptop as soon as he got home in March and that it crashed then,
but that, because there were other computers in the house (along
with a thumb drive containing adult pornography), Buczkowski did
not get around to taking it to be repaired until May. While the
testimony of Buczkowski’s wife largely supported the timeline
that Buczkowski urges on appeal, the jury was not required to
credit her testimony over Pennell’s. See United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (“[I]f the
evidence supports different, reasonable interpretations, the
jury decides which interpretation to believe.” (internal
quotation marks omitted)).
Pennell’s personal history, as brought out on cross-
examination, gave the jury ample reason to question her
credibility, and the cross-examination about when she saw the
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computer may well have cast doubt on the certainty she expressed
on direct examination. The fact remains, however, that Pennell
testified that Buczkowski had the laptop when he returned home
in March, and, as a reviewing court, we are not at liberty to
ignore or recast her testimony. “A fundamental premise of our
criminal trial system is that the jury is the lie detector,”
United States v. Scheffer, 523 U.S. 303, 313 (1998) (internal
quotation marks omitted), and it is “the unique province of the
jury to sift through conflicting evidence, assess the
credibility of the witnesses, and find facts,” United States v.
Thomas, 467 F.3d 49, 55 (1st Cir. 2006). Thus, when considering
the sufficiency of the evidence supporting a criminal
conviction, this court must assume that the jury found the
government’s witnesses credible, and we “must assume that the
jury resolved all contradictions in testimony in favor of the
[g]overnment.” Penniegraft, 641 F.3d at 572 (internal quotation
marks omitted). Given this strict standard of review, we simply
cannot accept Buczkowski’s contention that Pennell’s testimony
was insufficient to establish that he transported the laptop by
bringing it from Iraq to the United States.
Moreover, even without Pennell’s testimony, the record
contains sufficient circumstantial evidence to support the
determination that Buczkowski transported the laptop. See
United States v. Martin, 523 F.3d 281, 289 (4th Cir. 2008) (“As
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we have observed repeatedly, circumstantial evidence is not
inherently less valuable or less probative than direct evidence
and may alone support a guilty verdict.” (internal quotation
marks omitted)).
The evidence established that most of the child pornography
images were last accessed and viewed on the laptop on March 25,
2007 (J.A. 184), when Buczkowski was in Kuwait for evaluation of
his injury. (One image was last accessed on a date in May 2007
when the laptop was being repaired.) (J.A. 154-55) Buczkowski’s
laptop was password-protected, and the password had to be
entered as soon as the computer was turned on. (J.A. 182)
While there was evidence that Buczkowski let others use his
laptop while he was in Iraq, the evidence did not establish that
Buczkowski actually shared his password with others. Instead,
the evidence suggested that others used the laptop after
Buczkowski had logged on. (J.A. 476-77) Moreover, the child
pornography images and the pictures of Buczkowski engaging in
sexual acts with Pennell were located on the computer in a
folder that required a different password to gain access. (J.A.
180-81, 188-89) Given the presence of the Pennell pictures, the
jury could reasonably have concluded that, even if Buczkowski
had shared his log-on password, he would not have shared the
password for the image folder; that only Buczkowski knew the
passwords for both the computer and the image folder; and that
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it therefore was Buczkowski who turned on the computer and
viewed the images on March 25. Because Buczkowski was in Kuwait
on March 25 and did not return to base in Iraq before flying
back to the United States, this evidence supports the conclusion
that Buczkowski brought the laptop with him when he returned
home on March 27.
The evidence about the availability of medical treatment in
Iraq likewise lends support to the government’s view that
Buczkowski had the computer with him when he returned to the
United States. The base where Buczkowski was stationed had
limited ability to provide medical care. Employees with medical
issues that could not be treated on-base were sent to medical
clinics in Kuwait or Dubai, which required travel from the base
to the Green Zone in Baghdad, from the Green Zone to the Baghdad
airport, and from the airport to Kuwait or Dubai. As the facts
of this case establish, the process of getting treatment could
take several days: Buczkowski was injured on March 21; arrived
in Baghdad from the KBR base on March 23; left Baghdad for
Kuwait on March 24; was seen at the clinic in Kuwait on March
26; and departed Kuwait on March 28. The KBR travel request
form prepared in connection with Buczkowski’s injury showed that
he would spend one night in Baghdad before leaving for Kuwait
(J.A. 393-94), and the jury could reasonably have concluded that
Buczkowski would have known the travel-and-treatment process was
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a long and drawn out one, thus making it more likely that
Buczkowski would have taken his computer with him to have
something to pass the time.
Finally, Buczkowski’s wife testified that Buczkowski took
his military backpack when he left for Iraq and that the
computer was in the backpack. (J.A. 409) Her testimony
therefore established that the computer fit in the backpack, and
the jury could reasonably have concluded that the laptop was in
the backpack on the return trip and that Mrs. Buczkowski perhaps
did not see it.
Accordingly, after considering the record as a whole in the
light most favorable to the government and giving the government
the benefit of all inferences that reasonably can be drawn from
that evidence, we conclude that the evidence was sufficient to
support the jury’s determination that Buczkowski transported
child pornography.
III.
As noted above, Buczkowski was indicted on and convicted of
twenty-seven counts of transportation of child pornography --
one count for each image. The district court imposed sentences
of 240 months’ imprisonment for the first transportation
conviction, a consecutive 240 months’ imprisonment for the
second conviction, and concurrent 240-month sentences for each
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of the remaining transportation convictions. On appeal,
Buczkowski contends that the indictment was multiplicitous
because it split the single prohibited act of transporting child
pornography into twenty-seven separate offenses, one for each
image on the laptop. See United States v. Colton, 231 F.3d 890,
908 (4th Cir. 2000) (“Multiplicity involves charging a single
offense in more than one count in an indictment.” (internal
quotation marks omitted)). Because the government’s evidence
proved only a single act of transportation (transporting the
laptop from Iraq to the United States), Buczkowski argues that
he can be convicted and sentenced for only a single violation of
§ 2252(a)(1). ∗ We agree.
∗
The Federal Rules of Criminal Procedure require objections
to defects in an indictment to be made before trial; absent good
cause, the failure to timely object amounts to waiver of the
objection. See Fed. R. Crim. P. 12(b)(3)(B) & (e). Because
Buczkowski did not object to the indictment before trial, the
government argues he waived any multiplicity claim. See United
States v. Colton, 231 F.3d 890, 909 (4th Cir. 2000) (“Failure to
object to a count on grounds of multiplicity prior to trial
generally waives that objection.”). Based on the unique facts
of this case, we do not believe Rule 12 prevents us from
considering the multiplicity issue in this case. The
transportation counts were not plainly “ineluctably”
multiplicitous until trial, thus good cause under Rule 12(e)
relieved Buczkowski of the waiver. See United States v.
Williams, 89 F.3d 165, 167 n.1 (4th Cir. 1996) (granting relief
from Rule 12’s waiver provision because the defect in the
indictment did not become apparent until trial, when the
government’s evidence established that the counts in the
indictment were “ineluctably contradictory”).
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Whether Buczkowski committed one or twenty-seven offenses
by transporting the laptop containing twenty-seven images
depends on what Congress intended to be “the allowable unit of
prosecution” under the statute. Bell v. United States, 349 U.S.
81, 81 (1955) (internal quotation marks omitted); see United
States v. Dunford, 148 F.3d 385, 389 (4th Cir. 1998). At issue
in Bell was the Mann Act, 18 U.S.C. § 2421, which at that time
made it a crime to “knowingly transport[] in interstate or
foreign commerce any woman or girl for the purpose of
prostitution.” Bell, 349 U.S. at 82 (internal alteration
omitted). The defendant in that case had transported two women
in the same vehicle on a single interstate trip and had been
convicted and sentenced for two violations of the statute. The
Supreme Court found the statute ambiguous as to the intended
unit of prosecution and held that the ambiguity must “be
resolved against turning a single transaction into multiple
offenses.” Id. at 84.
Section 2252(a)(1) makes it a crime to “knowingly
transport[] or ship[] . . . in interstate or foreign commerce
any visual depiction . . . of a minor engaging in sexually
explicit conduct.” 18 U.S.C. § 2252(a)(1)(A). The central
focus of the statute is the act of transporting, not the number
of individual images transported, and the prohibition against
transporting “any” images does not unambiguously make each image
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transported count as a separate offense. See Dunford, 148 F.3d
at 389-90 (finding § 922(g)’s prohibition of possession of “any
firearm” ambiguous as to the allowable unit of prosecution);
United States v. Coiro, 922 F.2d 1008, 1014 (2d Cir. 1991)
(noting that “any” “has typically been found ambiguous in
connection with the allowable unit of prosecution, for it
contemplates the plural, rather than specifying the singular”
(internal quotation marks omitted)). Because the language of §
2252(a)(1) is functionally identical to that in Bell, and
because Buczkowski, like the defendant in Bell, transported
multiple items through a single act of transportation, we
believe Bell compels the conclusion that Buczkowski’s conduct
amounted to only a single violation of the statute. See Bell,
349 U.S. at 84; see also United States v. Gallardo, 915 F.2d
149, 151 (5th Cir. 1990) (per curiam) (concluding that under §
2252(a)(1), each separate act of transporting is a separate
offense and that simultaneously mailing four separate envelopes
was four separate acts of transportation, but noting that a
“defendant arrested with one binder containing numerous
photographs has committed only one act of transportation”
(emphasis added)). The district court therefore erred by
entering judgment and imposing sentences on twenty-seven
separate counts.
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While Buczkowski’s multiplicity claim is not waived under
Rule 12(e) under the unique facts of this case, his failure to
raise the issue below mandates application of plain-error
review, which requires Buczkowski to show the existence of a
plain error that affected his substantial rights. See, e.g.,
United States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011). In
light of Bell and our cases addressing the multiplicity issue
under other statutes, we believe the error was plain. See id.
(“An error is plain when it is obvious or clear under current
law.” (internal quotation marks omitted)). The error affected
Buczkowski’s substantial rights because a consecutive statutory-
maximum sentence was imposed on the second conviction and the
remaining transportation convictions themselves carry collateral
consequences notwithstanding the concurrent sentences. See Ball
v. United States, 470 U.S. 856, 865 (1985) (“The separate
conviction, apart from the concurrent sentence, has potential
adverse collateral consequences that may not be ignored.”);
United States v. Bennafield, 287 F.3d 320, 324 (4th Cir. 2002)
(special assessment imposed on concurrent sentence affected
defendant’s substantial rights under plain-error review).
Because it would affect the fairness of judicial proceedings to
allow multiple convictions and sentences to be imposed for a
single offense, we exercise our discretion to correct the error.
See Bennafield, 287 F.3d at 324.
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Accordingly, while we find no error in the first
transportation conviction and sentence, we vacate the remaining
transportation convictions and sentences (including special
assessments) and remand for resentencing. See United States v.
Burns, 990 F.2d 1426, 1438 (4th Cir. 1993) (“The signal danger
in multiplicitous indictments is that the defendant may be given
multiple sentences for the same offense. . . . [If] the
defendant has suffered multiple convictions and faces multiple
sentences, the appropriate remedy is to vacate all of them but
one.”).
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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