United States v. Stefanidakis

United States Court of Appeals
For the First Circuit

No. 11-1182

UNITED STATES OF AMERICA,

Appellee,

v.

SIMEON P. STEFANIDAKIS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Selya and Lipez,
Circuit Judges.

Jay Markell, by appointment of the court, on brief for
appellant.
Carmen M. Ortiz, United States Attorney, and Randall E. Kromm,
Assistant United States Attorney, on brief for appellee.

May 8, 2012
 SELYA, Circuit Judge. Defendant-appellant Simeon

Stefanidakis pleaded guilty to four counts of transporting and one

count of possessing child pornography. The district court imposed

sentences on all five counts. In this venue, the appellant argues

that these multiple sentences violate the Double Jeopardy Clause.

See U.S. Const. amend. V. After careful consideration, we reject

the appellant's importunings.

Because this appeal follows a guilty plea, we draw the

background facts from the change-of-plea colloquy, the plea

agreement, the presentence investigation report, and the transcript

of the disposition hearing. See United States v. Santos, 357 F.3d

136, 138 (1st Cir. 2004).

On October 9, 2008, the appellant entered an Internet

chat room. Unbeknownst to him, an undercover law enforcement

officer was surveilling the site. The officer engaged the

appellant in a one-on-one chat in which the pair discussed a mutual

interest in child pornography. The appellant then offered the

officer access to his pornography collection through GigaTribe, a

peer-to-peer file sharing program. Using his undercover GigaTribe

account, the officer learned that the appellant was sharing 112

gigabytes of content.

After recording the appellant's Internet Protocol (IP)

address, the officer downloaded nine files from the appellant's

digital library. Four of these files — three still images and one

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video — contained visual depictions of different young boys engaged

in sexually explicit conduct. The appellant does not contest the

pornographic nature of these materials.

The Federal Bureau of Investigation (FBI) tracked the IP

address. Its investigation led to the appellant, and FBI agents

obtained a warrant to search his residence in Brookline,

Massachusetts, for child pornography. On March 12, 2009, the

agents executed the warrant. The appellant waived his Miranda

rights, see Miranda v. Arizona, 384 U.S. 436, 467-73 (1966);

admitted that he was the person at the residence who had possession

of the child pornography; and handed over the external hard drive

that he had used to store the forbidden images.

Forensic analysis of the hard drive subsequently revealed

a log file (a record of the computer's activities). The log file

documented the appellant's earlier interactions with the undercover

officer. It also verified the existence of thousands of images

depicting child pornography.

Soon thereafter, a federal grand jury handed up a five-

count indictment against the appellant. Counts one through four

charged interstate transportation of child pornography, 18 U.S.C.

§ 2252(a)(1), and count five charged possession of child

pornography, id. § 2252(a)(4)(B). In due course, the appellant

agreed to plead guilty to all five counts. Among other features,

the plea agreement contained a waiver-of-appeal provision, which

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precluded the appellant from challenging either his conviction or

any sentence of sixty months or less.

At the change-of-plea hearing, the appellant acquiesced

in the prosecutor's factual account of the five charged crimes.

The court accepted the guilty plea as tendered. It later sentenced

the appellant to concurrent 84-month incarcerative terms on each of

the five counts of conviction. This timely appeal ensued.

The appellant's principal plaint is that the district

court failed to realize that he should have been sentenced either

for transportation of child pornography or for possession of child

pornography, but not both. In his view, sentencing him on the

entire array of charges offended the Double Jeopardy Clause.

The appellant labors to couch his argument as a

sentencing argument. He emphasizes that the transportation counts

each carry a five-year mandatory minimum sentence, see id.

§ 2252(b)(1), whereas the possession count carries no minimum

sentence, see id. § 2252(b)(2). The district court's failure to

recognize the double jeopardy violation, he insists, led it to

conclude erroneously that it had to apply the five-year mandatory

minimum when doing so was optional. If this were so, it arguably

would mean that the court failed to consider all legally available

sentences as required by 18 U.S.C. § 3553(a)(3).

The appellant's effort to spin his double jeopardy claim

as a claim of sentencing error is a thinly veiled attempt to evade

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the plea agreement's waiver-of-appeal provision — a provision that

precludes an appeal of his conviction but that allows an appeal of

a sentence of 84 months' duration. We need not dwell on the

efficacy of this sleight of hand because the double jeopardy claim,

however it is configured, represents an elevation of hope over

reason.

To begin, the appellant failed to raise any double

jeopardy issue below. Consequently, his claim is forfeited, and we

examine it through the prism of plain-error review. See United

States v. Olano, 507 U.S. 725, 731-32 (1993); United States v.

Cothran, 302 F.3d 279, 285 (5th Cir. 2002). "Review for plain

error entails 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). We

discern no error, plain or otherwise, in the court's imposition of

sentence.

The law surrounding double jeopardy has special nuances

where guilty pleas are involved. In Menna v. New York, 423 U.S. 61

(1975) (per curiam), much bruited by the appellant, the Supreme

Court allowed the defendant to raise a double jeopardy claim

notwithstanding his earlier entry of an unconditional guilty plea.

Id. at 62. The Court reasoned that when the government "is

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precluded by the United States Constitution from haling a defendant

into court on a charge, federal law requires that a conviction on

that charge be set aside even if the conviction was entered

pursuant to a counseled plea of guilty." Id.

But Menna is not the Court's final word on the subject.

In United States v. Broce, 488 U.S. 563 (1989), the Court made

pellucid that the ability to attack a guilty plea on double

jeopardy grounds is severely constrained. Id. at 569-76. The

Court explained that "[b]y entering a plea of guilty, the accused

is not simply stating that he did the discrete acts described in

the indictment; he is admitting guilt of a substantive crime." Id.

at 570. It follows that a defendant who pleads guilty to the full

panoply of the crimes specifically and distinctly alleged in an

indictment has relinquished the right to claim at a later date that

he had committed fewer crimes. See id. at 570-71. Consequently,

a guilty plea forecloses a double jeopardy claim unless "on the

face of the record the court had no power to enter the conviction

or impose the sentence." Id. at 569.

This means that once a defendant has pleaded guilty, he

cannot either revisit the factual predicate upon which his

conviction rests or venture outside the record to support his

argument. See id. at 571-76. Nor can he maintain a claim of

constitutional breach that is inconsistent with admissions that he

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made in the course of the guilty-plea proceedings. See id. at 576;

Jackson v. Coalter, 337 F.3d 74, 80 (1st Cir. 2003).

These principles are dispositive here. The appellant's

primary argument is that he could not be sentenced for both

possession and transportation of child pornography because all of

the charges are predicated on the same facts and, therefore, the

possession charge is a lesser included offense of the

transportation charges. As framed, this argument draws its essence

from Blockburger v. United States, 284 U.S. 299 (1932), which

prohibits charging the same conduct under two separate statutes

unless each statute requires proof of a fact that the other does

not. Id. at 304.

In a case in which conviction and sentencing follow the

acceptance of a guilty plea — and this is such a case — our inquiry

into the bona fides of a double jeopardy argument reduces to

whether the alleged double jeopardy violation is evident on the

face of the record. See Broce, 488 U.S. at 569; United States v.

Pollen, 978 F.2d 78, 84 (3d Cir. 1992) (collecting cases). To

carry out this task, we must look to whether the record contains

facts sufficient to supply a rational basis for a finding that the

possession and transportation counts were predicated on different

conduct. See United States v. Pimentel, 539 F.3d 26, 29 (1st Cir.

2008); United States v. Matos-Quiñones, 456 F.3d 14, 21 (1st Cir.

2006).

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 In the case at hand, the record establishes that the

transportation and possession counts were based on different

conduct. In the indictment, each of the four transportation counts

is grounded on one of the four specifically identified files that

the appellant transmitted to the officer on October 9, 2008. The

possession count, however, is based on other files, five of which

are specifically identified, that were stored in the external hard

drive discovered during the residential search on March 12, 2009.

These divergent scenarios were not merely alleged in the indictment

and then forgotten; during the change-of-plea colloquy, the

appellant admitted that he knowingly committed each of the five

separate crimes charged by the government and was, in fact, guilty

of each of those enumerated offenses.

The short of it is that the allegations limned in the

indictment and admitted by the appellant during the change-of-plea

colloquy comprise a rational factual basis for a finding that the

appellant committed, was convicted of, and was sentenced for five

discrete crimes. See Pimentel, 539 F.3d at 29; Matos-Quiñones, 456

F.3d at 21. Thus, there is no double jeopardy violation evident on

the record. See, e.g., United States v. Grant, 114 F.3d 323, 328-

30 (1st Cir. 1997); United States v. Makres, 937 F.2d 1282, 1284-86

& n.6 (7th Cir. 1991). The appellant's argument to the contrary

is, therefore, unavailing.

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 The appellant advances a second double jeopardy argument.

He asserts that the four transportation counts are multiplicitous

and, thus, sentencing him separately on each of those counts

violates the Double Jeopardy Clause. In this regard, he notes that

the indictment states only that he sent four files (three still

images and one video) during the Internet session on October 9,

2008, and points out that there is no factual basis for considering

these transmissions to be four separate transactions. We do not

agree.

Where, as here, a claim of multiplicity is premised on an

indictment alleging several violations of a single statutory

provision, an inquiring court must determine whether there is a

sufficient factual basis to treat each count as separate. United

States v. Pires, 642 F.3d 1, 15 (1st Cir. 2011). If no such basis

exists, the counts are multiplicitous and transgress the Double

Jeopardy Clause. See id.

The appellant's guilty plea places significant

limitations on the viability of his multiplicity claim. See Broce,

488 U.S. at 576; Grant, 114 F.3d at 329-30; Makres, 937 F.2d at

1285-86. The four separate counts are impervious to a multiplicity

challenge as long as the record discloses a factual basis for the

commission of four separate acts of criminal transportation. See

Grant, 114 F.3d at 329-30.

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 The indictment in this case alleges with conspicuous

clarity that the appellant transported four files via the Internet

to an undercover officer on a specific date. It proceeds to list

four separately identified files that the officer downloaded. At

the change-of-plea hearing, the district court wisely emphasized

that in order to convict the appellant on all four counts of

transportation, the government would need to prove that he had

transmitted each of these files separately. The appellant stated

that he understood this requirement and went on to admit his guilt

with respect to all four counts.

In the face of this inhospitable record, the appellant

protests that there is a lack of evidence about how the actual file

sharing took place. Because the government did not explicitly

discuss the file sharing process and show how each individual file

was separately transported, his thesis runs, the four

transportation counts must be considered multiplicitous. To

support this assertion, he cites Pires, in which we noted that the

unit of prosecution for receipt of child pornography derives from

the number of separate transactions, not from the number of images

received. 642 F.3d at 16. We proceeded to say that there was a

credible basis for the defendant's multiplicity claim because

"[t]he record contain[ed] no evidence that might establish that the

two files at issue [] were received in separate and distinct

transactions." Id.

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 Pires is readily distinguishable: it did not involve a

guilty plea. This distinction is critically important. See Grant,

114 F.3d at 330; cf. Matos-Quiñones, 456 F.3d at 21 (explaining

that "Rule 11 does not require a test of guilt versus innocence,

much less proof beyond a reasonable doubt that the defendant is in

fact guilty" (citation and internal quotation marks omitted)).

Although the appellant could have chosen to challenge the

theoretical underpinnings of the transportation counts and endeavor

at trial to show that only a single act of transportation occurred,

he did not make that choice. He chose instead to plead guilty,

thereby accepting certain benefits while at the same time accepting

the risk of a less fully developed record. See Broce, 488 U.S. at

571. Seen in this light, the challenged counts withstand scrutiny.

We need go no further. Because there is no colorable

showing of a double jeopardy violation, the district court did not

err in concluding that it had to impose a five-year mandatory

minimum sentence on each of the four transportation counts. See 18

U.S.C. § 2252(b)(1).

Affirmed.

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