Concurring in Part and Dissenting in Part.
While the majority opinion goes to great lengths to point out the distinction between knowing receipt and knowing possession . of child pornography, and that proof of the latter is not enough to satisfy the former, I suggest that the only proof adduced by the Government here is of the latter. There is simply no non-speculative evidence that would tend to show, let alone prove beyond a reasonable doubt, that Miller received the eleven images — out of the 1200-1400 total on the zip disk — knowing that they were child pornography. Perhaps there is enough from which the jury could infer his knowing possession — because the images were on a password-protected zip disk that he acknowledged was his. However, without any evidence whatsoever that would point to how he accessed or obtained the child pornography images, let alone any evidence tending to show that he was or should have been aware of what they were at the time he took possession of them, I suggest that a jury could not properly find knowing receipt.
Knowing receipt is a much more serious crime than knowing possession. Generally, it carries with it a five-year minimum sentence and a twenty-year maximum, while knowing possession has no statutory minimum and the maximum sentence is ten years. See 18 U.S.C. § 2252A(b). Inferring “knowing receipt” from (a) the *82presence of the images on the zip disk, and (b) the differing “copied” dates requires too great a leap. When combined with the burden of proof beyond a reasonable doubt, it strains credulity.
There were at least 1200 images on the zip disk and the Government only characterized twenty-less than 2% — of them as child pornography.1 Thirteen of the twenty images were created on October 13, 2002, one on October 29, 2002, five on December 17, 2002, and one on December 20, 2002. It should be noted that the thirteen copied on October 13 were among 586 image files copied to the zip disk over a seven-hour period, at intervals suggesting they were copied automatically. (The record before us does not indicate how many total images were copied on the three dates other than October 13.) Further, the District Court determined that only eleven of the twenty images put forth by the Government — less than 1% of all of the images on the zip disk — constituted child pornography.
Given the amazing capabilities of technology to trace and find, backtrack and connect, so as to prove the source and path of computer-generated and-transmitted data, the sheer inability of the Government to posit a non-speculative explanation as to how these images came to be on the zip disk, let alone prove they were “knowingly received” by Miller is, to me, striking.
I would REVERSE the jury verdict as to knowing receipt and REMAND for re-sentencing on the possession charge.2
. The Government’s expert did not even know the total number of images on the zip disk, testifying that there were between 1200 and 1400. The defendant's expert testified that there were 1373.
. I do agree with the majority that the perjury enhancement was improperly applied and that the knowing possession of child pornography is a lesser-included offense of the knowing receipt of child pornography.