United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS July 19, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-21040
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN ANTHONY PLANCK,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(4:05-CR-206)
_________________________________________________________________
Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit
Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For his seven guilty-plea convictions concerning child
pornography, John Anthony Planck challenges only his three
possession convictions, contending the underlying counts are
multiplicitious. Regarding his sentence, he challenges the
imposition of a life term of supervised release. AFFIRMED.
I.
In 2003, United States Immigration and Customs Enforcement
Agents were engaged in an online child-pornography investigation.
Planck was identified as a computer user responsible for uploading
child pornographic images onto a Government-monitored website. In
August 2004, a search warrant was executed at his residence; a
desktop computer, laptop computer, and 223 computer diskettes were
seized.
The desktop computer contained 88 videos and still child-
pornography photographs; the laptop computer, four still
photographs; and the diskettes, thousands of images. In total,
Planck’s computer data contained approximately 5,000 child-
pornography images.
Planck was charged with four counts of distribution of child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B),
2252A(b)(1), and 2256; and three counts of possession of child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B),
2252A(b)(2), and 2256. The possession counts were based on his
having child pornography on his two computers and diskettes.
Planck moved to dismiss two of the possession counts on
multiplicity grounds, contending he was being prosecuted three
times for the same possession-of-child-pornography act. The
Government responded that, although the counts arose under the same
statutory provision, the device involved in each count (desktop
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computer, laptop computer, and diskettes), and the images in each
of those devices, differed.
The district court denied Planck’s motion. In August 2005, he
pleaded guilty to all seven counts.
The November 2005 Presentence Investigation Report (PSR)
recommended a base offense level of 32, based on the post-Booker
advisory 2003 Sentencing Guidelines. The recommended advisory
Guidelines range was 121 to 151 months imprisonment. Noting the
Guidelines suggested a two to three year term, the PSR instead
recommended the statutory maximum of a life term, for supervised
release, pursuant to Guidelines § 5D1.2(c) (term of statutory
release should not be less than any statutorily required minimum).
Planck did not object to that recommendation.
In December 2005, adopting the recommendations in the PSR, the
district court sentenced Planck, inter alia, to 121-months
imprisonment on the distribution counts and 120-months on the
possession counts, to be served concurrently. The court also
imposed a life term of supervised release, in accordance with §
5D1.2(c). After imposition of sentence, Planck again objected to
the possession counts on multiplicity grounds; he again did not
object to the supervised release.
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II.
A.
Planck first contends two of the three possession counts are
multiplicitious and should be dismissed. Multiplicity claims are
reviewed de novo. United States v. Brechtel, 997 F.2d 1108, 1112
(5th Cir. 1993). The rule against multiplicitous prosecutions
stems from the Fifth Amendment’s proscription against double
jeopardy. E.g., United States v. Kimbrough, 69 F.3d 723, 729 (5th
Cir. 1995). The rule prevents the Government from charging a
single offense in more than one count of an indictment. United
States v. Heath, 970 F.2d 1397, 1401 (5th Cir. 1992). “The chief
danger raised by a multiplicitous indictment is the possibility
that the defendant will receive more than one sentence for a single
offense.” United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir.
1985).
In deciding whether an indictment is multiplicitious, we look
to “whether separate and distinct prohibited acts, made punishable
by law, have been committed”. United States v. Shaid, 730 F.2d
225, 231 (5th Cir. 1984) (quoting Bins v. United States, 331 F.2d
390, 393 (5th Cir. 1964)). To do so, we must first determine the
“allowable unit of prosecution”, see United States v. Reedy, 304
F.3d 358, 365 (5th Cir. 2002) (quoting United States v. Universal
C.I.T. Credit Corp., 344 U.S. 218, 221 (1952)), which is the actus
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reus of the defendant, United States v. Prestenbach, 230 F.3d 780,
783 (5th Cir. 2000).
The issue at hand is a matter of first impression for our
court. Therefore, we look to our precedent in analogous cases to
guide our analysis. Section 2252A(a)(5)(B) proscribes “knowingly
possess[ing] any book, magazine, periodical, film, videotape,
computer disk, or any other material that contains an image of
child pornography ....” Plank contends: despite the possession of
child pornography in three different types of devices, his acts
still constituted only a single violation of § 2252A(a)(5)(B),
because he was found in possession of the images at the same time
and place.
In support, Planck cites Prestenbach. There, the defendant
was convicted on four counts for possessing four altered money
orders in a bottle, in violation of 18 U.S.C. § 494, which made it
a crime to “[knowingly] possess ... any such false, forged,
altered, or counterfeited writing”. In Prestenbach, only a single
act of possession was alleged. 230 F.3d at 783.
Our court reversed the conviction, holding: where “contraband
is possessed at a single place and time, there is a single act of
possession and a single crime”. Id. “Keeping four altered money
orders in a ... bottle is one action, and therefore one crime.”
Id. at 784. Notably, however, Prestenbach also stated: had “the
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government proved separate acts leading to ... possession of the
altered money orders, it [would be] ... a different case”. Id.
Statutes punishing the possession of firearms by felons lend
similar support. Although 18 U.S.C. § 922(h) punishes the
“possess[ion]” or “recei[pt]” of “any firearm or ammunition”
traveling through interstate commerce, the “firearms themselves
[are not] allowable units of prosecution, unless they were received
at different times or stored in separate places”. United States v.
Hodges, 628 F.2d 350, 352 (5th Cir. 1980) (emphasis added); see
also United States v. Berry, 977 F.2d 915, 920 (5th Cir. 1992)
(simultaneous possession of firearms and ammunition can sustain
multiple violations of 18 U.S.C. § 922 if firearms were obtained at
different times or stored in separate places). Congress chose not
to punish the “undifferentiated possession or receipt of multiple
firearms ... more severely than the possession or receipt of a
single firearm”. Hodges, 628 F.2d at 352 (emphasis added). But
again, a defendant could be charged with multiple violations of the
statute for receipt or possession of different firearms at
different times. United States v. Bullock, 615 F.2d 1082, 1085-86
(5th Cir. 1980).
“Where a defendant has a single envelope or book or magazine
containing many images of minors engaging in sexual activity, the
government often should charge only a single count.” Reedy, 304
F.3d at 367. Here, however, the desktop, laptop, and diskettes
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Planck possessed were three separate types of material or media,
each capable of independently storing images of child pornography.
Along that line, where a defendant has images stored in separate
materials (as defined in 18 U.S.C. § 2252A), such as a computer, a
book, and a magazine, the Government may charge multiple counts,
each for the type of material or media possessed, as long as the
prohibited images were obtained through the result of different
transactions.
A contrary result would allow amassing a warehouse of child
pornographic material — books, movies, computer images — with only
a single count of possession as a potential punishment. As Bullock
noted, when discussing the firearms statute:
[C]ould Congress have intended to deter
receipt as well as possession of firearms by
convicted felons and yet design the statute to
only allow one punishment no matter how many
separate receipts and possessions occurred? We
think not. Any other determination would allow
convicted felons and terrorists to establish
armories where all of their weapons would be
kept. The person in custody of the armory
would then be subject to only a single charge
of possession, although thousands of illegal
and dangerous weapons were received and
stockpiled at different times.
Bullock, 615 F.2d at 1086.
Recently, in United States v. Buchanan, 485 F.3d 274 (5th Cir.
2007), our court reversed a multiplicitous conviction under 18
U.S.C. § 2252(a)(2), which proscribes, inter alia, the receipt of
child pornography. Buchanan was convicted, following a jury trial,
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on four separate counts, for having accessed and saved to his
computer four different child pornographic images. Id. at 277-78.
Our court held the Government “bore the burden of establishing
multiple counts by charging and proving separate receipts” of the
contraband material; it failed to meet its burden by not
“alleg[ing] separate receipt of the four images identified”. Id.
at 282. Buchanan is, of course, distinguishable; in a
receipt/distribution statute, such as 18 U.S.C. § 2252(a)(2), each
separate receipt of child pornography violates the statute. Id. at
279-82; cf. United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.
1990) (each separate use of the mail to transport or ship child
pornography should constitute a separate crime).
For the possession statute in issue, however, the actus reus
is the possession of child pornography; the Government need only
prove the defendant possessed the contraband at a single place and
time to establish a single act of possession and, therefore, a
single crime. Prestenbach, 230 F.3d at 783. Through different
transactions, Planck possessed child pornography in three separate
places — a laptop and desktop computer and diskettes — and,
therefore, committed three separate crimes. The counts are not
multiplicitous.
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B.
In contesting his life term of supervised release, Planck
concedes he did not object to that term in district court.
Therefore, we review only for plain error. FED. R. CRIM. P. 52(b).
To establish reversible plain error, a defendant must show a clear
or obvious error affected his substantial rights. E.g., United
States v. Castillo, 386 F.3d 632, 636 (5th Cir. 2004). Even if the
defendant does so, we retain discretion to correct the plain error;
generally, we will do so only if it “affects the fairness,
integrity, or public reputation of judicial proceedings”. Id.
There is no reversible plain error.
The policy statement in Guidelines § 5D1.2 recommends a
maximum term of supervised release for sex offenders who are
convicted under Chapter 110 of the United States Code (Sexual
Exploitation and Abuse of Children), particularly those who commit
crimes “perpetrated against minors”. U.S.S.G. § 5D1.2(c) & cmt.
n.1 (2003). Read in conjunction with statutory provisions
governing supervised release, district courts are authorized to
impose a life term of supervised release on sex offenders,
particularly those who commit crimes against minors. United States
v. Allison, 447 F.3d 402, 405 (5th Cir. 2006).
Planck first claims his offense does not qualify under §
5D1.2(a)(2), asserting that consuming and distributing, unlike
manufacturing, child pornography is not a crime perpetrated against
9
a minor. In that regard, he further claims: had the drafters of
the Guidelines intended for all sex offenses under Chapter 110 to
be encapsulated within § 5D1, they would have omitted the qualifier
“perpetrated against a minor”.
Possession and distribution of child pornography are crimes
perpetrated against a minor. As this court has stated previously,
a child may be victimized in three distinct ways:
First, the simple fact that the images have
been disseminated perpetuates the abuse
initiated by the producer of the materials
.... Second, the mere existence of child
pornography represents an invasion of privacy
of the child depicted. Both the Supreme Court
and Congress have explicitly acknowledged that
the child victims of child pornography are
directly harmed by this despicable intrusion
on the lives of the young and the innocent
.... Third, the consumer of child pornography
instigates the original production of child
pornography by providing an economic motive
for creating and distributing the materials.
United States v. Norris, 159 F.3d 926, 929-30 (5th Cir. 1998)
(internal citations, quotation marks, and emphasis omitted).
Under the advisory-Guidelines regime imposed by United States
v. Booker, 543 U.S. 220 (2005), a district court must still
consider the sentencing considerations provided in 18 U.S.C. §
3553(a). E.g., United States v. Smith, 440 F.3d 704, 706 (5th Cir.
2006). In the alternative, Planck claims: even if he qualified
for an upward departure, it was not warranted because his case was
not outside the heartland of a typical case.
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In imposing the supervised release, the district court stated
it was intended to “serve as a deterrent [for the defendant] from
continued elicit [sic] behavior involving sexual conduct of minors
and/or the possession of child pornographic materials that would
address the need to protect the public from further crimes of this
defendant”. These stated reasons are consistent with the
sentencing factors in § 3553(a). See 18 U.S.C. § 3553(a)(2)(B, C)
(“deterrence” and “protect[ing] the public from further crimes of
the defendant” as sentencing factors). Furthermore, because of the
seriousness of the offense, we have previously upheld life terms of
supervised release against sex offenses perpetrated against minors.
See Allison, 447 F.3d at 407 (“[T]he decision to departure upward
... [is] consistent with Congress’s and the Sentencing Commission’s
intention to punish child sex offenders with life terms of
supervised release”.).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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No. 05-21040
WIENER, Circuit Judge, specially concurring:
I am comfortable with the majority’s disposition of the issue of Planck’s
term of supervised release. I add this special concurrence, however, to expand
on the multiplicity issue.
I agree with the majority that, in prosecutions for possession offenses, the
actus reus is the defendant’s act of possession, in consequence of which a
defendant who possesses multiple items of contraband at the same time and
place may be convicted of only one possession offense, just as a defendant who
possesses a single item of contraband may be convicted of only one offense. I
also agree with the majority’s recognition of an exception to this general rule: A
defendant who possesses multiple items of contraband at the same time and
place, may nevertheless be convicted of multiple possession offenses if he either
(1) came into possession of different items of contraband at different times or (2),
as the government contends here, stored some of the items in different places.1
1
Although the desktop computer was found in Planck’s living
room, the laptop computer in his dining room, and the diskettes
in his bedroom, all were stored in his house at the same time.
Under these facts, it is feckless to contend that these items
were stored in different places. Possession of all items within
Planck’s home was storage in the same place.
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In this prosecution, the government failed to adduce any evidence or assert
any facts through the factual basis, rearraignment hearing, sentencing hearing,
pre-sentence investigation report, or indictment, that Planck acquired possession
of any of the pornographic images and movies at different times. Even though
such an omission could be fatal to a prosecution under different circumstances,
it is not here: Given the overwhelming number of images and movies stored on
the computers and diskettes in Planck’s house, it would exceed credulity to
conclude that Planck acquired, or could have acquired, all the images and movies
at the very same time. In this guilty-plea case, the district court did not clearly
err in implicitly finding that, based on and supported by the evidence actually
presented, Planck must have acquired possession of the images and movies at
different times. Under the discrete facts of this case, I must concur in the
majority’s conclusion that convictions on Counts 5 through 7 — the possession
counts — are not multiplicitous.
I remain troubled, however, by the government’s failure to present any
affirmative evidence or assert any discrete facts to support the requirement of
Planck’s having acquired the images and movies at more than one time. It could
not have been difficult for the government to ascertain when Planck downloaded
each of the images and movies, especially in light of the government’s ability to
perform the more difficult task of tracing the upload of images by Planck, a
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resident of Kingwood, Texas, to an online sharing community operating in
Newark, New Jersey.
I am even more disturbed by the government’s and probation office’s
apparent failure to recognize the law in this circuit concerning multiple
possession offenses in general. Even though this case is, in the narrowest sense,
one of first impression under this statute and these discrete facts, it remains a
contraband possession case at its core. Yet at no time, either in the district court
or on appeal, has the government or probation office acknowledged, recognized,
or represented that the only way to support multiple possession charges against
a defendant in Planck’s position is to allege and prove that he either acquired
possession of the images and movies at different times or stored them in
different places. Here, the government either failed to determine the applicable
law before prosecuting Planck or simply disregarded it.
Had the facts of this case been but slightly different, the result might well
have been different too. And, although the only thing at stake in this particular
multiplicity issue is a $200.00 special assessment fee, it would have been a
miscarriage if we had been left no choice but to reverse all but one of these
convictions of an admitted child pornographer simply because the government
failed either to learn the law or to present the necessary factual underpinnings.
A word (actually, quite a few words) to the wise should be sufficient.
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