United States v. Bobb

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 6, 2009
THOMAS K. KAHN
No. 07-13252 CLERK
________________________

D. C. Docket No. 06-20519-CR-UUB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD CURTIS BOBB,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 6, 2009)

Before TJOFLAT and CARNES, Circuit Judges, and BOWEN,* District Judge.

TJOFLAT, Circuit Judge:

*
Honorable Dudley H. Bowen, United States District Judge for the Southern District of
Georgia, sitting by designation.
 In this appeal, we consider whether convictions for both “receiving” and

“possessing” child pornography violate the Double Jeopardy Clause of the Fifth

Amendment to the Constitution. Because the indictment charged and the

Government proved at trial that Edward Curtis Bobb had committed two distinct

offenses, occurring on two different dates, in breach of two different statutes, we

find no Double Jeopardy Clause violation and, accordingly, affirm.

I.

A.

In September 2004, the Federal Bureau of Investigation (“FBI”) opened an

investigation to find the person or persons responsible for posting numerous

images of child pornography on a website operated by the Great Plains Child Care

Resource and Referral Center in Oklahoma (the “Center”). As part of its

investigation, the FBI extracted data from the Center’s host computers that

identified the IP (internet provider) addresses of computers that had recently been

used to visit the Center’s website.

With this information in hand, the FBI issued subpoenas to numerous

Internet Service Providers (“ISPs”) to require that they reveal the subscriber

information for customers who had visited the Center’s website during the time

2
frame when the images appeared on the site.1 After acquiring this information, the

FBI identified the account holders who had visited the site and, more importantly,

the account holders who had accessed the specific section of the website

containing the child pornography. Focusing attention on these individuals, the

FBI discovered that, on November 12, 2004, an individual located somewhere in

Miami, Florida, accessed the section of the Center’s website containing the child

pornography and had downloaded seven videos and numerous other picture files.

The FBI soon traced the person to Bobb’s residence.2

On August 10, 2005, FBI agents executed a search warrant at Bobb’s

apartment.3 The agents explained to Bobb that they were looking for images of

child pornography that someone, on November 12, 2004, had downloaded to a

computer traced to his home. Bobb told the agents that he was the only person

living in the residence who used a computer to access the Internet.

1
We assume that the FBI subpoenaed the ISPs under 18 U.S.C. § 2703(c)(2). Under this
provision, the government can obtain an administrative subpoena (if authorized by federal and
state statute) requiring an electronic communication service provider to disclose the “(A) name;
(B) address; (C) local and long distance telephone connection records, or records of session times
and durations; (D) length of service (including start date) and types of service utilized; (E)
telephone or instrument number or other subscriber number or identity, including any temporarily
assigned network address; and (F) means and source of payment for such service (including any
credit card or bank account number)” of any customer or subscriber.
2
It is unclear from the record whether the FBI ever discovered the person or persons
responsible for uploading the child pornography onto the Center’s website.
3
Bobb shared the apartment with his son, Xeno.

3
 Bobb’s apartment consisted of three rooms: a main living room, a kitchen,

and a bedroom. While searching the bedroom, the agents discovered two Apple

laptop computers: one silver and the other black. In the living room, the agents

found a beige desktop computer and two LaCie4 external hard drives. The agents

removed the computers, the hard drives, and miscellaneous paperwork and

correspondence related to Bobb.

After seizing Bobb’s computer equipment, the agents returned to the FBI

office where Special Agent Mary Katherine Koontz inventoried and reviewed the

electronic contents in the computers. During this process, Koontz discovered that

the silver Apple laptop contained 6,124 images of child pornography. She also

discovered seven “zip files”5— two of the zip files contained movies of child

pornography that had been viewed on the computer. In addition, Koontz found

approximately 2,000 images consisting of several images of child pornography

“layered on top of one another.” That is, instead of one distinct image of child

pornography, each image consisted of at least two images of child pornography

4
LaCie is the name of a computer hardware company specializing in external hard drives
and other computer components.
5
A “zip file” is a large computer file that has been compressed to a smaller size so that it
can be easily transmitted over the Internet.

4
merged together to create a single unique image.6 On the other computers and

hard drives, Koontz found another 1,500 images of child pornography.

Koontz submitted fifty of the images found on the silver laptop to Walter

Lambert, M.D., a pediatrician at the University of Miami Hospital, and asked that

he determine the ages of the children depicted in the images. After examining the

images, Dr. Lambert was unable to determine the age of the person in one of the

images, but he was able to discern that forty-four images depicted children, mainly

girls, under the age of twelve, and that five images depicted children older than

twelve, but under the age of eighteen.

B.

Over a year later, on August 24, 2006, a federal grand jury returned an

indictment charging Bobb with one count of “receiving” child pornography on

November 12, 2004, in violation of 18 U.S.C. § 2252A(a)(2)(B)7 (“Count I”), and

6
Bobb claimed that he was a “bona fide true artist” and that he was using the overlapping
images of child pornography as part of an avant-garde project he entitled “Totem and Taboo.”
Bobb stated that he wanted to use the work to expose “the ugliness of child pornography.”
7
18 U.S.C. § 2252A(a)(2)(B) provides that:

Any person who . . . knowingly receives or distributes . . . any material that
contains child pornography that has been mailed, or using any means or facility of
interstate or foreign commerce shipped or transported in or affecting interstate or
foreign commerce by any means, including by computer . . . shall be punished as
provided in subsection (b).

5
one count of knowingly “possessing” child pornography on August 4, 2005,8 in

violation of 18 U.S.C. § 2252A(a)(5)(B)9 (“Count II”).10 Bobb pled not guilty to

both counts.

Before trial, Bobb filed a “Motion for Relief from Joinder,” arguing that,

since “[t]he alleged offenses occurred on two different dates” and because “[t]he

same witnesses will be used to prove both counts,” there was a substantial risk that

the jury would conflate the evidence used to prove Count I with the evidence used

8
While the indictment charged Bobb with possessing child pornography on August 4,
2005, the evidence at trial established that the FBI conducted a search of Bobb’s home on August
10, 2005, and seized the computers containing child pornography on that date. The evidence,
accordingly, was that Bobb possessed the child pornography on August 10, 2005. Bobb did not
object to this variance. For its part, the district court instructed the jury that “[t]he government
does not have to prove with certainty the exact date of the alleged offense. It is sufficient if the
government proves beyond a reasonable doubt that the offense was committed on a date
reasonably near the date alleged.”
9
18 U.S.C. § 2252A(a)(5)(B) provides that:

Any person who . . . either knowingly possesses, or knowingly accesses with
intent to view, any book, magazine, periodical, film, videotape, computer disk, or
any other material that contains an image of child pornography that has been
mailed, or shipped or transported using any means or facility of interstate or
foreign commerce or in or affecting interstate or foreign commerce by any means,
including by computer, or that was produced using materials that have been
mailed, or shipped or transported in or affecting interstate or foreign commerce by
any means, including by computer . . . shall be punished as provided in subsection
(b).
10
The Government also added one count of forfeiture under 18 U.S.C. § 2253(a), which,
inter alia, requires defendants convicted of child pornography offenses to relinquish all rights to
any personal property used, or intended to be used, to commit the offense. In this case, Bobb was
required to surrender to the Government the silver and black Apple laptops and the beige desktop
computer.

6
to prove Count II. Specifically, Bobb pointed out that the evidence the

Government planned to use to prove Count I, the “receiving” count, was the seven

zip files that Bobb had allegedly downloaded from the Center’s website on

November 12, 2004, and the rest of the images would be used to prove Count II,

the “possessing” count. According to Bobb, he would be unduly prejudiced

because the jury would likely consider the images regarding Count II when

considering Count I. The district court denied the motion, and the case proceeded

to trial.

After a three-day trial, a jury found Bobb guilty on both counts. Bobb’s

conviction on Count I for “receiving” child pornography carried a minimum

mandatory sentence of five years’ imprisonment. 18 U.S.C. § 2252A(b)(1). The

statutory sentencing range for his conviction on Count II, “possessing” child

pornography, was set at zero to ten years’ imprisonment. 18 U.S.C. §

2252A(b)(2). Because there were over 6,000 images found on Bobb’s computers,

the Government asked for a sentence on the “highest end” of the Guidelines

sentencing range, which was 168 to 210 months.11 Over the Government’s

objection,12 the district court departed from the prescribed guideline range and

11
Under the sentencing guidelines, a five-level enhancement applies to convictions
involving “600 or more images.” U.S.S.G. § 2G2.2(b)(7)(D).
12
The Government did not appeal the sentence.

7
sentenced Bobb to concurrent sentences of ninety-six months’ imprisonment and

five years’ supervised release.13

Bobb now argues, for the first time on appeal, that his sentences for both

“receiving” and “possessing” child pornography are impermissible because both

counts of the indictment charged him with the same offense in violation of the

Fifth Amendment’s Double Jeopardy Clause.

II.

While we usually review de novo claims of double jeopardy, United States

v. Harvey, 78 F.3d 501, 503 (11th Cir. 1996), we review issues not properly raised

before the district court, such as the instant one, for plain error. Fed. R. Crim. P.

52(b); United States v. Evans, 478 F.3d 1332, 1338 (11th Cir. 2007). Under the

plain error standard, we will affirm the district court unless: (1) there was an error

in the district court proceedings; (2) the error was plain; and (3) the error affected

the defendant’s substantial rights. Id. If these conditions are met, we may

exercise our discretion and vacate the conviction if the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. United States v.

13
The district court explained that, in its view, a departure from the sentencing guidelines
was warranted because Bobb would have a particularly difficult time in prison, as his sense of
identity was inextricably intertwined with his art. And, because there would be very few
opportunities to develop his art, prison would be a “very, very, devastating experience” for him.
(Appellee’s Br. at 24.)

8
Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785,152 L. Ed. 2d 860 (2002); see

also United States v. Granville, 716 F.2d 819, 821 (11th Cir. 1983) (per curiam)

(“To constitute [plain error], . . . the deficiency must be obvious and substantial,

affecting the fairness or integrity of the trial.”), aff'd on rehearing, 736 F.2d 1480

(11th Cir. 1984).

A.

The Fifth Amendment’s Double Jeopardy Clause guarantees that no person

shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

U.S. Const. amend. V. This guarantees against a second prosecution for the same

offense after acquittal, a second prosecution for the same offense after conviction,

and multiple punishments for the same offense. See Jones v. Thomas, 491 U.S.

376, 380–81, 109 S. Ct. 2522, 2525, 105 L. Ed. 2d 322 (1989); North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969),

overruled on other grounds by, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201,

104 L. Ed. 2d 865 (1989). Relevant to this case is the Double Jeopardy Clause’s

prohibition against multiple punishments for the same offense.

As a general proposition, when a defendant has violated two different

criminal statutes, the Double Jeopardy Clause is implicated when both statutes

prohibit the same act or transaction or when one act is a lesser included offense of

9
the other. See Rutledge v. United States, 517 U.S. 292, 297, 116 S. Ct. 1241,

1245, 134 L. Ed. 2d 419 (1996). Congress, of course, has the power to authorize

multiple punishments arising out of a single act or transaction. See Williams v.

Singletary, 78 F.3d 1510, 1512 (11th Cir. 1996). The constitutional guarantee

against double jeopardy merely assures that the court does not “exceed its

legislative authorization by imposing multiple punishments for the same offense.”

Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977);

accord Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d

535 (1983) (“[T]he Double Jeopardy Clause does no more than prevent the

sentencing court from prescribing greater punishment than the legislature

intended.”). If it is not clear, though, that the legislature intended multiple

punishments for the same conduct, a presumption arises that a conviction under

multiple statutes for the same offense is contrary to legislative intent. See Hunter,

459 U.S. at 366–67, 103 S. Ct. at 678–79; Whalen v. United States, 445 U.S. 684,

691–92, 100 S. Ct. 1432, 1437–1438, 63 L. Ed. 2d 715 (1980). To sum up, where

two statutory provisions proscribe the same offense and there is no clear indication

that the legislature intended multiple punishments for the offense, the Double

Jeopardy Clause’s prohibition against multiple punishments protects a defendant

from being convicted under both provisions.

10
 The Supreme Court has penned a black-letter rule for use in determining

when dual statutory provisions prohibit the same offense: “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, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932). Our

analysis focuses on the proof necessary to establish the statutory elements of each

offense, not the actual evidence presented at trial. Illinois v. Vitale, 447 U.S. 410,

416, 100 S. Ct. 2260, 2265, 65 L .Ed. 2d 228 (1980); Iannelli v. United States, 420

U.S. 770, 785, n. 17, 95 S. Ct. 1284, 1294 n.17, 43 L. Ed. 2d 616 (1975); United

States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).

We pause to acknowledge that, even in cases such as this, where the

imposed sentences run concurrently, unlawfully multiplicitous convictions carry

serious collateral consequences that cannot be ignored. “For example, the

presence of two convictions on the record may delay the defendant's eligibility for

parole or result in an increased sentence under a recidivist statute for a future

offense. Moreover, the second conviction may be used to impeach the defendant’s

credibility and certainly carries the societal stigma accompanying any criminal

conviction.” Rutledge, 517 U.S. at 302, 116 S. Ct. at 1248 (quoting Ball v. United

11
States, 470 U.S. 856, 865, 105 S. Ct. 1668, 1673, 84 L. Ed. 2d 740 (1985)).

Where we conclude that a defendant has suffered a double jeopardy violation

because he was improperly convicted for the same offense under two separate

counts, “the only remedy consistent with the congressional intent is for the

[d]istrict [c]ourt, where the sentencing responsibility resides, to exercise its

discretion to vacate one of the underlying convictions.” Ball, 470 U.S. at 864, 105

S. Ct. at 1673.

B.

Bobb’s opening argument is based on a simple proposition: it is impossible

to “receive” a thing without, at least at the very instant of “receipt,” also

“possessing” it.14 This argument has merit, as courts have recognized that

“[g]enerally federal statutes criminalizing the receipt of contraband [generally]

require a knowing acceptance or taking of possession of the prohibited item.”

United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006) (internal quotation

omitted); see United States v. Ladd, 877 F.2d 1083, 1088 (1st Cir. 1989) (stating

that a person must have possession of contraband to show receipt); United States

v. Griffin, 705 F.2d 434, 437 (11th Cir. 1983) (per curiam) (finding that receipt, in

14
The Oxford English Dictionary (2d ed. 1989) defines “receive” as “[t]o take in one’s
hand, or into one’s possession (something held out or offered by another); to take delivery of (a
thing) from another, either for oneself or for a third party.”

12
the context of a firearms statute, “includes any knowing acceptance or taking of

possession”); see also United States v. Strauss, 678 F.2d 886, 894 (11th Cir. 1982)

(“We believe that accepting a good and having either physical control of or

apparent legal power over a good is sufficient to show that an individual received

it.”).

Building upon this foundation, Bobb argues that the offenses described in

18 U.S.C. § 2252A(a)(2) (prohibiting receipt) comprise a subset of the offenses

described in 18 U.S.C. § 2252A(a)(5)(B) (prohibiting possession), such that

possession is a lesser included offense of receipt (possession being the lesser

offense as demonstrated by the lower statutory penalty range). The Supreme

Court has observed that comparing criminal statutes to determine whether one set

of elements is a subset of another requires a strictly textual comparison. Carter v.

United States, 530 U.S. 255, 260–61, 120 S. Ct. 2159, 2164, 147 L. Ed. 2d 203

(2000). This requires that we look to the statutory elements, not the way the

offenses are charged in the indictment. See United States v. Nash, 115 F.3d 1431,

1437 (9th Cir. 1997).

18 U.S.C. § 2252A(a)(2)(B) authorizes punishment for “[a]ny person who. .

. knowingly receives or distributes . . . any material that contains child

pornography that has been mailed, or using any means or facility of interstate or

13
foreign commerce shipped or transported in or affecting interstate or foreign

commerce by any means, including by computer.” 18 U.S.C. § 2252A(a)(5)(B)

criminalizes the “knowing[ ] possess[ion] . . . [of] any book, magazine, periodical,

film, videotape, computer disk, or any other material that contains an image of

child pornography that has been mailed, or shipped or transported using any

means or facility of interstate or foreign commerce or in affecting interstate or

foreign commerce by any means, including by computer, or that was produced

using materials that have been mailed, or shipped or transported in or affecting

interstate or foreign commerce by any means, including by computer.”

Accepting the proposition that, if a person takes “receipt” of a thing, they

necessarily must “possess” the thing, we find that these provisions, indeed,

proscribe the same conduct; by proving that a person “knowingly receives” child

pornography, the Government necessarily proves that the person “knowingly

possesses” child pornography.15 See Blockburger, 284 U.S. at 304, 52 S. Ct. at

182 (stating that the test for determining whether there have been multiplicitous

convictions for the same offense focuses on the statutory elements of the offenses

to determine if each requires proof of a fact that the other does not).

15
We pause to note that the converse is not true: a person can “possess” child
pornography without taking “receipt” of it. That is because a person can create the pornography
himself.

14
 Next, we must consider whether Congress clearly intended to punish a

defendant for both “receipt” and “possession” when it enacted the two provisions.

See Albernaz v. United States, 450 U.S. 333, 340, 101 S. Ct. 1137, 1143, 67 L. Ed.

2d 275 (1981) (“The Blockburger test is a ‘rule of statutory construction,’ and

because it serves as a means of discerning congressional purpose the rule should

not be controlling where, for example, there is a clear indication of contrary

legislative intent.”) “In resolving . . . [a] contention that Congress did not intend

to authorize multiple punishment for violations of [two distinct statutes], our

starting point must be the language of the statutes. Absent a ‘clearly expressed

legislative intention to the contrary, that language must ordinarily be regarded as

conclusive.’” Id. at 336, 101 S. Ct. at 1141 (quoting Consumer Prod. Safety

Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L.

Ed. 2d 766 (1980)). After considering the plain text of the statute and the relevant

legislative history, we find no “clear indication of [ ] legislative intent” to impose

multiplicitous punishment for “receipt” and “possession” of child pornography.

See H.R. Conf. Rep. No. 104-863, at 28–34 (1996) (discussing the Child

Pornography Prevention Act of 1996); see also H.R. Conf. Rep. No. 95-811, at

5–7 (1977), as reprinted in 1978 U.S.C.C.A.N. 69, 69–71 (1977) (addressing

provisions similar to § 2252A); S. Rep. 95-438, at 1–34 (1977), as reprinted in

15
1978 U.S.C.C.A.N. 40, 40–69 (same).

We acknowledge that this is a question of first impression for this circuit,

and, while the text of the statute provides a sufficient basis for our conclusion, we

note that our reasoning is consonant with the Supreme Court’s decision in Ball v.

United States, 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985). In Ball, a

felon convicted of receiving a firearm in violation of 18 U.S.C. § 922(h)16 was also

convicted of possessing that firearm in violation of 18 U.S.C. App. § 1202(a).17 Id.

at 857–58, 105 S. Ct. at 1669–70. After applying the same-elements test advanced

by Blockburger, the Court concluded that “proof of illegal receipt of a firearm

necessarily includes proof of illegal possession of that weapon. When received, a

firearm is necessarily possessed. In other words, Congress seems clearly to have

recognized that a felon who receives a firearm must also possess it, and thus had

no intention of subjecting that person to two convictions for the same criminal

act.” Ball, 470 U.S. at 862, 105 S. Ct. at 1672 (citation and internal quotation

16
Congress revised much of the text of 18 U.S.C. § 922 after the Supreme Court struck
down various provisions of the statute in Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365,
138 L. Ed. 2d 914 (1997) (holding that certain provisions of § 922, which incorporated the Brady
Handgun Violence Prevention Act, were unconstitutional, as the Act compelled state officers to
execute federal laws), and United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624,131 L. Ed. 2d
626 (1995) (holding that the Gun-Free School Zones Act of 1990, set out in § 922(g), exceeded
Congress’s Commerce Clause authority).
17
This provision has since been repealed. Firearm Owners’ Protection Act, Pub. L. No.
99-308, § 104(b), (May 19, 1986), 100 Stat. 449, 459.

16
omitted; emphasis in original).

We also find support for our reasoning in the decisions rendered by two of

our sister circuits on the very issue we consider today. The Third Circuit, in

United States v. Miller, 527 F.3d 54 (3d Cir. 2008), found that Ball was

controlling and concluded that “possession of child pornography in violation of §

2252A(a)(5)(B) is a lesser-included offense of receipt of child pornography in

violation of § 2252A(a)(2).” Miller, 527 F.3d at 72. Since the defendant had been

convicted and sentenced under both provisions for the same conduct in violation

of the Double Jeopardy Clause, the court remanded the case to the district court

with instructions to vacate one of the underlying convictions. Id. at 74. The Ninth

Circuit reached the same conclusion in United States v. Davenport, 519 F.3d 940,

947–48 (9th Cir. 2008), United States v. Giberson, 527 F.3d 882, 891 (9th Cir.

2008), and United States v. Brobst, 558 F.3d 982, 1000 (9th Cir. 2009). See also

United States v. Morgan, 435 F.3d 660, 662–63 (6th Cir. 2006) (noting that a

defendant charged under § 2252A(a)(2), who pled guilty to violating §

2252A(a)(5)(B), had pled to “a lesser-included offense of the charged

violation”).18

18
We also note that in Miller and Davenport, the courts proceeded under plain error
review and found that multiplicitous convictions for both “receipt” and “possession” of child
pornography was plain error that threatened “the fairness, integrity, and public reputation of [the]
judicial proceedings.” Davenport, 519 F.3d at 947–48; see Miller, 527 F.3d at 74 (finding that,

17
 C.

While we agree with Bobb’s opening argument, that “possession” is a lesser

included offense of “receipt,” his appeal ultimately fails. Unlike the facts in Ball,

Miller, Davenport, Giberson, and Brobst, where the defendants were convicted

and sentenced under two different statutes for the same offense, Bobb’s

convictions and sentences were based on two distinct offenses, occurring on two

different dates, and proscribed by two different statutes. Count I of the indictment

charged Bobb with taking “receipt” of child pornography on November 12, 2004,

while Count II charged Bobb with having “possession” of child pornography in

August 2005. The evidence at trial proved that Bobb received child pornography

on November 12, 2004, by downloading the seven zip files from the Center’s

website, and, in August 2005, he possessed over 6,000 additional images.

Accordingly, the record shows that the indictment charged Bobb with two separate

offenses, and the Government introduced evidence sufficient to convict him of

those distinct offenses.

III.

For the reasons stated above, defendant Bobb’s convictions are

under the plain error standard, the court could “notice the double jeopardy error” and provide an
appropriate remedy).

18
AFFIRMED.

19