United States v. Brandon Royce Phillips, 4 F.4th 1171

Brandon Phillips (33) posed as a 17–18-year-old female "Katie Davis" on Kik and for ~2 months solicited sexually explicit videos from a 14-year-old boy; the boy sent about 30 videos.
Forensic extraction of the boy's phone recovered videos and two Kik communications; subpoenas traced the Katie account IP to Phillips; a search and forensic exam linked the Kik account to Phillips's phone.
A grand jury indicted Phillips on three counts: Count I (18 U.S.C. §2251(a) — using/enticing a minor to produce visual depictions, indictment phrased "knowingly and intentionally"), Count II (receiving child pornography, §2252A(a)(2)), and Count III (possessing child pornography, §2252A(a)(5)(B)).
At trial the district court instructed the jury that the government need not prove Phillips knew the victim was under 18 for Count I; Phillips objected based on the indictment wording; the jury convicted on all three counts.
On appeal Phillips argued (1) the jury instruction ‘‘constructively amended’’ the indictment by removing a knowledge-of-age element, and (2) double jeopardy barred punishment for both receipt and possession; the Eleventh Circuit affirmed Counts I and II, vacated Count III (possession), and remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court constructively amended the indictment by instructing the jury that knowledge of the victim's age was not required for Count I	Government: §2251(a) does not require knowledge of age; the indictment's phrase "knowingly and intentionally" modifies the prohibited acts, not age, so instruction was correct	Phillips: The indictment expressly alleged he acted "knowingly and intentionally," which he read to require proof he knew the victim was a minor; omitting that element at instruction broadened the indictment	Court: §2251(a) contains no age scienter; extra mens rea in the indictment is surplusage and may be ignored; no constructive amendment; instruction proper
Whether convicting and sentencing Phillips for both receipt and possession of child pornography violated Double Jeopardy	Government: conceded the two convictions arose from the same conduct and that convicting on both was error	Phillips: possession is a lesser-included offense of receipt, so he cannot be punished for both	Court: Possession is a lesser-included offense of receipt; convictions arose from same incident; double jeopardy violated; vacated Count III and remanded for resentencing

United States v. Amede, 977 F.3d 1086 (11th Cir.) (indictment language imposing extra mens rea may be treated as surplusage and deleted)
United States v. Deverso, 518 F.3d 1250 (11th Cir.) (§2251 does not require knowledge of victim's age)
United States v. Cancelliere, 69 F.3d 1116 (11th Cir.) (constructive amendment where jury was first told mens rea was required then later instructed otherwise)
United States v. Bobb, 577 F.3d 1366 (11th Cir.) (plain-error standard and rule against multiple punishments for the same conduct)
United States v. Miller, 471 U.S. 130 (Sup. Ct.) (court may drop unnecessary allegations from an indictment)
Ball v. United States, 470 U.S. 856 (Sup. Ct.) (remedy for multiple punishments is to vacate one of the convictions)