UNITED STATES of America, Plaintiff-Appellee, v. Joseph Eddy BENOIT, Defendant-Appellant. Vicky, Amicus Curiae.
No. 12-5013.
United States Court of Appeals, Tenth Circuit.
April 2, 2013.
Richard A. Friedman (Thomas Scott Woodward, United States Attorney, and Jeffrey A. Gallant, Assistant United States Attorney, Lanny A. Breuer, Assistant Attorney General, and John D. Buretta, Acting Deputy Assistant Attorney General, with him on the briefs), United States Department of Justice, Washington, D.C., for the Plaintiff-Appellee.
Paul G. Cassell, S.J. Quinney College of Law at the University of Utah (James R. Marsh, Marsh Law Firm PLLC, White Plains, NY, and Carol L. Hepburn, Carol L. Hepburn PS, Seattle, WA, with him on the briefs), Salt Lake City, UT, for Amicus Curiae.
Before LUCERO and BALDOCK, Circuit Judges, and SKAVDAHL, District Judge*.
LUCERO, Circuit Judge.
Joseph Benoit was convicted of receipt of child pornography in violation of
Benoit contends that the district court erred in denying his motion to suppress evidence obtained from a search of his computer. We reject this claim. Law enforcement officials seized Benoit‘s computer after his girlfriend discovered child pornography on it. The Fourth Amendment is “wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (quotation omitted). On the record before us, it is clear that the officer called to Benoit‘s residence acted as a mere witness while private individuals showed the officer child pornography. Without any indication that the officer instigated or encouraged the private search, we conclude that the officer did not search Benoit‘s computer within the meaning of the Fourth Amendment. We also conclude that the officer properly seized Benoit‘s computer given the plainly evident incriminating character of the child pornography.
Benoit also challenges his convictions for both receipt and possession of child pornography under the Double Jeopardy Clause. We agree with Benoit that pos-
Finally, Benoit argues that the district court‘s restitution order was improper. In accord with the majority of circuits to have considered the issue, we hold that
We affirm as to Benoit‘s numerous remaining claims. Exercising jurisdiction under
I
Benoit and his girlfriend, Rose DeGraffenreid, resided in Tulsa, Oklahoma, in a home rented by DeGraffenreid. On the morning of July 15, 2010, Officer Mark Moore of the Tulsa Police Department (“TPD“) responded to a call from DeGraffenreid‘s residence relating to child pornography. When Moore arrived at the residence, he was greeted by DeGraffenreid, who invited him in and explained that while she was using Benoit‘s computer to pay bills, she had found what appeared to be child pornography on his computer.
DeGraffenreid and Nicole Kidd, a relative of DeGraffenreid‘s residing with her at the time, led Moore to a room used as an office that had two computers. The office was unlocked. Benoit‘s computer was on and open to the main desktop page. Because DeGraffenreid was not “computer-savvy,” she had Kidd open a child pornography video they had found. Kidd said “I can show it to you,” to which Moore responded “Okay.” Kidd then “clicked on an icon and opened up” the video. Kidd offered to open additional files, but Moore told her that was not necessary.
Moore then called Detective Scott Gibson with the TPD‘s cybercrimes unit. Gibson instructed Moore to seize the computer and obtain witness statements from DeGraffenreid and Kidd. DeGraffenreid did not object to Moore taking possession of the computer. Moore testified at a later suppression hearing that the computer was “in a common area,” that it appeared “both Ms. DeGraffenreid and Ms. Kidd had joint use and free access to the computer,” and that he never “direct[ed] Ms. DeGraffenreid or Ms. Kidd to do anything . . . [a]ll their actions were voluntary.”
On July 23, 2010, a magistrate judge issued a search warrant authorizing the search of Benoit‘s computer. Sergeant Malcolm Williams of the TPD cybercrimes unit found over 320 images and approximately eighty videos of child pornography. A few days later, Benoit called Sergeant Williams and asked for a meeting. Sergeant Williams and Detective Gibson met and interviewed Benoit at a truck stop, during which Benoit admitted to having downloaded child pornography over a period of several years. Benoit wrote and signed a statement to that effect.
At trial, a jury found Benoit guilty on both counts. Benoit filed various post-trial motions, including a motion for a new trial. All post-verdict motions were denied. Benoit was sentenced to concurrent terms of 125 and 120 months’ imprisonment and was ordered to pay $11,466 in restitution to one of the victims who appeared in a depiction of child pornography possessed by Benoit. Benoit appeals.
II
We first consider Benoit‘s Fourth Amendment claim. A denial of a motion to suppress is reviewed de novo. United States v. McGehee, 672 F.3d 860, 866 (10th Cir.2012). We accept the district court‘s factual findings unless they are clearly erroneous and view the evidence in the light most favorable to the government. Id. “The ultimate question of reasonableness under the Fourth Amendment is a legal conclusion that we review de novo.” United States v. Burgess, 576 F.3d 1078, 1087 (10th Cir.2009).
Benoit argues that Officer Moore‘s inspection and seizure of his computer without first having obtained a search warrant violated his Fourth Amendment rights. He claims that DeGraffenreid lacked actual or apparent authority to consent to Officer Moore‘s search of his computer because she had informed Moore that the computer did not belong to her.
Subject to limited exceptions, the Fourth Amendment prohibits warrantless searches. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Voluntary consent by a third party with actual or apparent authority is a well-established exception to the warrant requirement. United States v. Andrus, 483 F.3d 711, 716 (10th Cir.2007). “A third party has actual authority to consent to a search if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes.” Id. (quotation omitted). Apparent authority may be found if “the facts available to the officer” at the time of the search would lead a person “of reasonable caution” to believe “that the consenting party had authority over the premises.” Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793 (quotation omitted). On this basis, “a third party has apparent authority to consent to a search when an officer reasonably, even if erroneously, believes the third party possesses authority to consent.” Andrus, 483 F.3d at 716.
A
Before addressing the question of consent, we first determine whether Officer Moore‘s viewing of the child pornography video prior to seizing Benoit‘s computer constitutes a search covered by the Fourth Amendment. In deciding the issue, we consider Officer Moore‘s testimony that he was dispatched to DeGraffenreid‘s residence to investigate a possible child pornography matter. Moore testified that on arriving at the residence:
A. [DeGraffenreid] told me she had found that stuff on her boyfriend‘s computer, and she said that I could look at the—that she would show me some of the stuff on the computer. She had [Kidd] take me back and open up a file on the computer.
. . .
Q. And where did they take you?
A. Took me to a room they‘re using as an office.
. . .
Q. Was the computer turned on, one of them?
A. Yes.
Q. What, if anything, happened next?
A. Well, we sat down, [Kidd] sat next to me, and she opened up—she clicked on an icon and opened up a video and showed me the video.
Q. And how long did you watch the video for?
A. It wasn‘t very long. Maybe less than ten seconds.
Q. And what, if anything, did you see?
A. I saw an underage girl, a minor, having sex with an adult male.
DeGraffenreid also testified that Kidd showed the video to Officer Moore.
Based on the foregoing, we conclude that Moore did not conduct a search or direct a private search under the Fourth Amendment. It is well-settled that the Fourth Amendment “proscrib[es] only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” Jacobsen, 466 U.S. at 113-14, 104 S.Ct. 1652 (quotation omitted). “However, in some cases a search by a private citizen may be transformed into a governmental search implicating the Fourth Amendment if the government coerces, dominates or directs the actions of a private person conducting the search or seizure.” United States v. Poe, 556 F.3d 1113, 1123 (10th Cir.2009) (quotation omitted).
Accordingly, the question before us is whether the search conducted by DeGraffenreid and Kidd could be construed as a governmental search directed by Officer Moore. We have delineated a two-step inquiry to determine whether a search by a private individual constitutes state action:
First, we determine whether the government knew of and acquiesced in the [private person‘s] intrusive conduct. Second, we consider whether the party performing the search intended to assist law enforcement efforts or to further his own ends. Both prongs must be satisfied considering the totality of the circumstances before the seemingly private search may be deemed a government search.
Id. (quotations and citations omitted). We have additionally held that “knowledge and acquiescence . . . encompass the requirement that the government agent must also affirmatively encourage, initiate or instigate the private action.” United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir.1996). “[I]f a government agent is involved merely as a witness, the requisite government action implicating Fourth Amendment concerns is absent.” Id. (quotation omitted). Police must, in “some affirmative way . . . instigate, orchestrate, encourage or exceed the scope of the private search to trigger application of the Fourth Amendment.” Id. (citation omitted).
Applying this test, we conclude that neither DeGraffenreid nor Kidd acted as a government agent in discovering child pornography files on Benoit‘s computer.
To the extent that Kidd conducted a secondary search by displaying a video after Officer Moore arrived, that search cannot be characterized as governmental action because Moore did not “affirmatively encourage, initiate or instigate the private action.” Smythe, 84 F.3d at 1243. Officer Moore did not touch or handle the computer or any of its parts, and did not assist or encourage Kidd as she opened the child pornography file. Kidd appears to have retained full control over Benoit‘s computer while Moore passively viewed a child pornography video shown to him. As Moore testified, he never “direct[ed] Ms. DeGraffenreid or Ms. Kidd to do anything . . . [a]ll their actions were voluntary.”
These facts are quite similar to those presented in Smythe. There, a bus station manager, McCartney, received a suspicious package. Id. at 1241-42. Uncertain as to his authority to open the package, the manager telephoned the police department, which dispatched Sergeant Walker to the station:
Once at the bus station, Sergeant Walker informed Mr. McCartney that he, Sergeant Walker, believed that Mr. McCartney could open the package but that he, Sergeant Walker, could not. Sergeant Walker never touched the package, did not assist, ask or otherwise encourage Mr. McCartney to open the package and stepped away as Mr. McCartney opened the package. Mr. McCartney testified that the decision to open the package was entirely his, that he was not acting at the request or as an agent of the police in opening the package, and that he would have opened the package regardless of whether the police responded to his call.
Id. at 1242. We held that “the search in question is not a governmental search implicating the Fourth Amendment.” Id. at 1243. Like Sergeant Walker, Moore acted as “merely a witness” while a private citizen took action, and he did not “instigate[], orchestrate[] or encourage[] the search.” Id. (quotation omitted).1
Although Officer Moore responded “Okay” when Kidd offered to show the video, this response does not transform an otherwise private search into a government intrusion. Fourth Amendment concerns are not implicated “when a private person voluntarily turns over property be-
B
Having established that the Fourth Amendment did not apply to Moore‘s initial observation of Benoit‘s computer, we next consider whether Moore‘s seizure of the computer was permissible. An officer may seize evidence of a crime without a warrant if three conditions are met: (1) “the seizing officer must not have violated the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed“; (2) “the item must not only be in plain sight, but its incriminating character must also be immediately apparent“; and (3) the officer must “have a lawful right of access to the object.” United States v. Naugle, 997 F.2d 819, 822 (10th Cir.1993) (quotations omitted).
We conclude all three prongs have been satisfied. With respect to the first, it is clear that DeGraffenreid had actual authority to invite Moore into her shared home and into the shared office. DeGraffenreid had both “mutual use of the property by virtue of joint access” and “control for most purposes” over the office as the renter of the shared home. Andrus, 483 F.3d at 716 (quotations omitted). Benoit does not contend otherwise; he challenges only DeGraffenreid‘s authority over his computer.
Regarding the second prong, Officer Moore was situated in front of Benoit‘s computer when Kidd began playing the video and thus was in a “place from which the evidence could be plainly viewed.” Naugle, 997 F.2d at 822. Furthermore, the incriminating character of the child pornography was immediately apparent. Moore testified that the video showed a minor female having sex with an adult male and that there was no doubt in his mind that the video depicted child pornography. Accordingly, “upon viewing the object, the officer . . . at that moment ha[d] probable cause to believe the object to be contraband.” United States v. Tucker, 305 F.3d 1193, 1202-03 (10th Cir.2002); see also Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 111 L.Ed.2d 112 (1990) (noting that “even though inadvertence is a characteristic of most legitimate ‘plain-view’ seizures, it is not a necessary condition“).
As for the third prong, we have stated that the lawful access factor “is implicated in situations such as when an officer on the street sees an object through the window of a house, or when officers make observations via aerial photography or long-range surveillance.” Naugle, 997 F.2d at 823. Under those circumstances, “officers cannot use the plain view doctrine to justify a warrantless seizure, because to
III
This brings us to Benoit‘s claim that his convictions for receipt of child pornography under
A
The Double Jeopardy Clause protects a defendant “against cumulative punishments for convictions on the same offense.” Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). The Clause is implicated if two statutes prohibit the same act or transaction, typically because one is a lesser included of-fense of the other. See Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). Multiplicitous sentences are not wholly proscribed; if “multiple counts for which a defendant is convicted cover the same criminal behavior, our review is limited to whether Congress intended multiple convictions and sentences under the statutes.” United States v. Morehead, 959 F.2d 1489, 1506 (10th Cir.1992). We “presume that where two statutory provisions proscribe the same offense, a legislature does not intend to impose two punishments for that offense.” Rutledge, 517 U.S. at 297, 116 S.Ct. 1241 (quotation omitted). However, this presumption is not controlling if “there is a clear indication of contrary legislative intent.” Missouri v. Hunter, 459 U.S. 359, 367, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (quotation omitted).
If “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, 76 L.Ed. 306 (1932); see also United States v. Sturm, 673 F.3d 1274, 1287 (10th Cir.2012) (same). “Because we must assume that Congress legislated with Blockburger in mind, we presume, absent express Congressional intent to the contrary, that Congress intended multiple convictions and sentences for the same criminal behavior which violates more than one statute when each statute requires proof of a fact that the other does not.” Morehead, 959 F.2d at 1506 (citation omitted). The Court has
Applying Blockburger to the charges at issue, we conclude that possession of child pornography is a lesser included offense of receipt of child pornography. Benoit was convicted under
knowingly receiv[ing] . . . any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer . . . , if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct.
Benoit was also convicted under
knowingly possess[ing] . . . 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if—
(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct.
The jury was instructed that each count required proof of five elements, four of which were materially identical for both charges: (1) production of the visual depictions at issue involved the use of a minor engaging in sexually explicit conduct; (2) the visual depictions were of a minor engaged in sexually explicit conduct; (3) the defendant knew or believed that at least one of the performers in the visual depictions was a minor; and (4) an interstate commerce nexus. With respect to the receipt charge, the government was required to prove that Benoit “knowingly received or attempted to receive” a visual depiction.3 As to the possession charge, the government was required to show that Benoit “knowingly possessed” a visual depiction.
Because the only difference between the elements of the two counts is the distinction between possessing and receiving, the dispositive question under Blockburger is whether one can knowingly receive without also knowingly possessing. This is a ques-
Although there may be meaningful differences between a firearm and a visual depiction of child pornography for some purposes, the Ball Court‘s conclusion is equally valid in the present context: A defendant cannot knowingly receive a visual depiction of child pornography without simultaneously possessing it.4 As a matter of logic, Benoit could not have been guilty of receipt without also being guilty of possession. It follows that possession of child pornography is a lesser included offense of receipt of the same child pornography. Every circuit to have considered this issue has reached the same conclusion. See United States v. Ehle, 640 F.3d 689, 695 (6th Cir.2011) (“‘Receiving’ child pornography necessarily requires one to ‘possess’ that child pornography. . . . ‘Possessing’ child pornography is a lesser-included offense of ‘receiving’ the same child pornography.“); Muhlenbruch, 634 F.3d at 1003 (“[P]roof of receiving child pornography under
Because possession is a lesser included offense of receipt, Benoit cannot be subject to multiplicitous punishments absent “a clear indication of contrary legisla-
Nothing in the statutory text evinces congressional rejection of the Blockburger presumption. The Supreme Court has instructed that if “every proof of [the greater offense] will demonstrate [the lesser offense],” such an “overlap is enough to conclude, absent more, that Congress did not intend to allow punishments for both.” Rutledge, 517 U.S. at 304 n. 14, 116 S.Ct. 1241. As discussed above, one cannot prove that a defendant knowingly received child pornography without also demonstrating that the defendant possessed child pornography.
We note the similarity between the statutes at issue in this case and those at issue in Ball. See Id. at 866, 105 S.Ct. 1668 (reciting text of statutes prohibiting receipt and possession of firearms for certain classes of individuals). Given that the Court discerned no indication to stray from the Blockburger presumption in Ball, Congress’ use of the same terms in
In Sturm, we noted that Congress identified separate harms flowing from the possession and distribution of child pornography. Id. at 1279-80 (quoting Pub.L. No. 104-208, Div. A., Title I, § 101(a), 110 Stat. 3009-26). But even accepting the premise that receipt is bound up with distribution more closely than possession is, we agree with the Sixth Circuit that “all this appears to indicate is that Congress viewed an individual‘s ‘knowingly possessing’ child pornography as a separately punishable offense where the same individual had not also ‘knowingly received’ the same child pornography.” Ehle, 640 F.3d at 698. Legislative history of
[T]he legislative history of the 1990 amendments to the child pornography statutes, which added the crime of “knowingly possessing” child pornography to a scheme that already included “knowingly receiving” child pornography, indicates that the crime of “knowingly possessing” child pornography was meant as a gap-filling provision, targeting those who “possessed” child pornography without having also “received” the same child pornography. Senator Thurmond stated, “Current law prohibits the knowing transportation, distribution, receipt or reproduction of child pornography which has traveled in interstate commerce. Those who simply possess or view this material are not covered by current law. This legislation corrects this insufficiency.” 136 Cong. Rec. S4729 (1990).
For the foregoing reasons, we agree with those other circuits that have consid-
B
Although we hold that possession of child pornography is generally a lesser included offense of receipt and that Congress did not intend to punish these same offenses separately, these conclusions do not end our inquiry. “Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior.” Morehead, 959 F.2d at 1505 (quotation omitted). The doctrine has no application in cases in which two counts are based on “two distinct sets of conduct.” Sturm, 673 F.3d at 1288. In Sturm, for example, the defendant was charged “with knowing possessing of three specific images of child pornography between January 1, 2005, and May 5, 2006” and charged in a separate count with “knowing receipt of child pornography on June 8, 2005.” Id. At trial, the government showed that the defendant possessed one set of images, and that he received an entirely different set of images. Id. And the “jury was specifically instructed as to which images were associated with which count.” Id. Because the defendant‘s “convictions and sentences were based on two distinct acts, occurring on two different dates, and proscribed by two different statutes,” we held that “the Double Jeopardy Clause is not implicated.” Id.
Other circuits have made the same determination in cases in which the government charged and proved distinct instances of receipt and possession. In Bobb, the Fourth Circuit ruled that possession is a lesser included offense of receipt, but affirmed both convictions because they “were based on two distinct offenses, occurring on two different dates, and proscribed by two different statutes.” Id. at 1375. In one count, the defendant was charged with “taking ‘receipt’ of child pornography on November 12, 2004,” and in a second count, he was charged with “having ‘possession’ of child pornography in August 2005.” Id. At trial, the evidence showed that the defendant “received child pornography on November 12, 2004, by downloading . . . seven zip files . . . and, in August 2005, he possessed over 6,000 additional images.” Id.
Similarly, in United States v. Halliday, 672 F.3d 462 (7th Cir.2012), the court declined to address the lesser included offense issue because it determined that different conduct was alleged and proven for each count. Id. at 470-71. The indictment in that case alleged receipt “on or before” two specific dates, and alleged possession “between” those two dates. Id. at 471. At trial, the prosecutor “both in her opening and closing statements specified that the videos that formed the bases of the receipt counts were downloaded ‘on’ [the two specified dates] and that the possession counts were related to videos ‘between’ those dates.” Id. And the evidence showed that the defendant downloaded eleven videos between the two dates that were distinct from the pornography he downloaded on those dates. Id. The defendant‘s multiplicity claim was rejected under the plain error standard. Id. at 467, 471.
To begin, the indictment uses identical language in both counts. Count One of the indictment charged that Benoit “knowingly received and attempted to receive numerous visual depictions of minors engaging in sexually explicit conduct” from “on or about December 17, 2008 to around July 15, 2010.” Count Two charges that Benoit “knowingly possessed and knowingly accessed with intent to view visual depictions of minors engaging in sexually explicit conduct” from “on or about December 17, 2008 to around July 15, 2010.” To the extent the government intended to charge Benoit for two distinct acts or transactions, it failed to do so in the indictment.7 Cf. Sturm, 673 F.3d at 1288 (indictment specifically alleged distinct dates for receipt and possession); Bobb, 577 F.3d at 1375 (same).
In addition, both the prosecutor and defense counsel expressly stated to the jury that the two counts were based on identical conduct. In the prosecutor‘s opening statement, he stated:
Just a word about the indictment. There are two separate counts. The evidence will be that the first count is receiving the child pornography by downloading it from the Internet over a number of years. Count 2 is possessing that same child pornography that was downloaded and possessed on those hard drives....
(Emphasis added.) And in closing, the prosecution stated that the evidence proved Benoit “sought out, collected, received, and possessed hundreds of images of child pornography [and] over 70-some videos of child pornography.” See Halliday, 672 F.3d at 471 (stating that the prosecutor‘s statements are not evidence, but noting that the prosecutor submitted differing evidence for the jury‘s consideration as to receipt and possession counts). Defense counsel also stated in closing that both counts related to “the same pictures.”
Further, the jury was not instructed that the two counts referred to distinct visual depictions. Cf. Sturm, 673 F.3d at 1288 (“The jury was specifically instructed as to which images were associated with which count....“). In United States v. Frierson, 698 F.3d 1267 (10th Cir.2012), we held that a jury must be “adequately instructed that they could not find Defendant guilty of more than one count of conspiracy unless they were convinced beyond a reasonable doubt that he entered into two separate agreements to violate the law.” Id. at 1270 (quotation and alteration omitted). Because the jury was not so instructed, and because nothing in the prosecutor‘s closing argument distinguished the two conspiracy counts, we held that the charges were “plainly multiplicitous.” Id. This was so despite an “instruction to the jurors that they ‘separately consider each defendant and each Count‘” similar to that provided in this case. Id.
Finally, we see nothing in the manner the evidence was presented at trial that would suggest to the jury that the two counts related to distinct images. Only one argument is advanced by the govern-
We reject the government‘s argument, which is contradicted by the prosecutor‘s own statements at trial. As noted above, the prosecution stated that “the first count is receiving the child pornography by downloading it from the Internet over a number of years” and that “Count 2 is possessing that same child pornography that was downloaded.” The prosecution also stated that Benoit “sought out, collected, received, and possessed hundreds of images of child pornography [and] over 70-some videos of child pornography.” These statements cannot be squared with the present assertion that the receiving count related to a subset of depictions that included only a single image. Further, the jury was never alerted to the fine distinction now made with respect to the file creation date and the distinct charges. To the contrary, the government witness who presented the chart testified that all of the images and videos—both those referenced on the summary chart and the others—were downloaded from the internet by Benoit.
In light of the record as a whole, it is clear that Benoit was convicted of both receipt of child pornography under
IV
We turn to Benoit‘s appeal of the district court‘s order that he pay restitution of $11,466. Legal sentencing determinations concerning restitution are reviewed de novo. United States v. Masek, 588 F.3d 1283, 1287 (10th Cir.2009). Factual findings are reviewed for clear error and the amount of restitution is reviewed for abuse of discretion. United States v. Osborne, 332 F.3d 1307, 1314 (10th Cir.2003).
A
The Supreme Court has recognized that the distribution of child pornography is “intrinsically related to the sexual abuse of children” because, inter alia, “the materials produced are a permanent record of the children‘s participation and the harm to the child is exacerbated by [its] circulation.” New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Recognizing this connection,
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.
Amicus curiae “Vicky,” the recipient of the restitution ordered below, argues that the proximate cause requirement in
Courts have struggled with articulating a precise standard of proximate cause in the restitution context under
Similarly, the Eleventh Circuit held that “for proximate cause to exist, there must be a causal connection between the actions of the end-user and the harm suffered by the victim . . . any other result would undermine the express wording of
Of the other circuits to have ruled on this issue, all but one have held that
Only one circuit has agreed with Vicky‘s position. On rehearing en banc, the Fifth Circuit recently held “that
Although we acknowledge the Fifth Circuit‘s statutory interpretation of the restitution statute, we are persuaded by the majority of our sibling circuits. We hold that in determining the scope of restitution to be awarded to a child pornography victim,
Despite the plausible applicability of these contradictory canons, we presume Congress “to have legislated against the background of our traditional legal concepts, and absent language signaling a departure, those concepts ought to be employed.” Burgess, 684 F.3d at 457 (quo-
Our interpretation is supported by
Vicky argues that requiring proximate causation under
B
The district court awarded Vicky restitution of $11,466. The evidence presented at Benoit‘s sentencing hearing suggests that Vicky has suffered various losses based on her knowledge that individuals receive and possess visual depictions of her exploitation. However, the evidence that Benoit was specifically responsible for any of these losses was relatively thin.
In United States v. Kennedy, 643 F.3d 1251 (9th Cir.2011), the Ninth Circuit held that the defendant‘s participation in the audience of persons who viewed the images of the victim was insufficient to show proximate cause. Id. at 1264-65. As that court explained:
Rather than proving a causal relationship between Kennedy‘s actions and the victims’ losses, the government‘s evidence showed only that Kennedy participated in the audience of persons who viewed the images of Amy and Vicky. While this may be sufficient to establish that Kennedy‘s actions were one cause of the generalized harm Amy and Vicky suffered due to the circulation of their images on the internet, it is not sufficient to show that they were a proximate cause of any particular losses.
In short, the government here did not prove the existence of any causal connection between Kennedy‘s offense and Amy and Vicky‘s specific losses, let alone prove that Kennedy‘s offense was a “material and proximate cause” of
Id. at 1263-64. Several other circuits have reached similar conclusions regarding the specificity required to reach a proximate cause determination. See Laraneta, 700 F.3d at 991-93 (remanding for a redetermination of the portion of damages to the victim allocable to the defendant); Burgess, 684 F.3d at 460 (“The primary difficulty that will face the district court on remand will be the determination, if the court finds that proximate causation has been established, of the quantum of loss attributable to Burgess for his participation in Vicky‘s exploitation.“); Kearney, 672 F.3d at 99-100 (determining proximate cause was satisfied because defendant‘s actions resulted in identifiable losses as outlined in the expert reports and Vicky‘s victim impact statements); Aumais, 656 F.3d at 154-55 (concluding proximate cause was lacking because victim had no direct contact with defendant or knew of defendant‘s existence and no evidence linked defendant‘s possession to loss suffered by victim); Monzel, 641 F.3d at 539 (“Because the record does not show that Monzel proximately caused all of Amy‘s injuries, the district court did not clearly and indisputably err by declining to impose joint and several liability on him for the full $3,263,758 she seeks.“); McDaniel, 631 F.3d at 1209 (specific notifications from the National Center for Missing and Exploited Children alleged by victim add to the “slow acid drip of trauma” suffered by victim and thus satisfied proximate cause requirement).
Considering this weight of authority, we cannot affirm the district court‘s restitution award. The total restitution amount was reached by adding together two totals. First, the court awarded $5,950 for attorney fees based on a conservative estimate of hours devoted to this case multiplied by an hourly rate. We have no issue with this portion of the award. Second, the district court apparently divided the total loss claimed by Vicky, $1,224,694.04, by 222, the number of restitution judgments Vicky had received at the time of the hearing. This implicit calculation does not meet the proximate cause standard we have announced on the record before us.8 Despite our sympathy for Vicky, “show[ing] only that [defendant] participated in the audience of persons who viewed the images of [the victim] . . . may be sufficient to establish that [defendant‘s] actions were one cause of the generalized harm [victims] suffered due to the circulation of their images on the internet, [but] it is not sufficient to show that they were a proximate cause of any particular losses.” Kennedy, 643 F.3d at 1264.
Because the district court is better suited to calculate damages under the proper standard than this court, we remand for a
V
Benoit also appeals the district court‘s denial of various and sundry motions and sentencing requests. We discern no merit in any of these claims.
A
Benoit contends that the district court erred in refusing to dismiss his case based on the government‘s alleged failure to meet the jurisdictional nexus requirement of
Benoit offers a cursory argument that because both his computer and his internet service provider are located in Oklahoma, there can be no interstate commerce nexus. As Benoit concedes, however, this argument has recently been specifically rejected by this court. See United States v. Sturm, 672 F.3d 891, 892 (10th Cir.2012) (en banc) (“[T]he Government may satisfy the jurisdictional element of [
B
We review the denial of a motion for a new trial for abuse of discretion. United States v. Poole, 545 F.3d 916, 918 (10th Cir.2008). We consider Benoit‘s appeal of the “denial of [his] motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the government in determining if there is substantial evidence from which a jury could find the defendant guilty beyond a reasonable doubt.” United States v. Austin, 231 F.3d 1278, 1283 (10th Cir.2000) (citation omitted).
Benoit claims he did not receive a fair trial “for various reasons,” including lack of proper jury instructions, insufficient evidence of an interstate commerce nexus, double jeopardy, his claim that the receipt count requires an intent to distribute, the use of an unqualified expert, the denials of his motions to dismiss and suppress, and his requested lesser-included offense argument. For the most part, Benoit simply repeats the issues he previously raised. We have already considered and ordered relief if appropriate as to the substance of Benoit‘s claim that receipt requires an intent to distribute, his double jeopardy and lesser included offense issues, and the denial of his motions to dismiss and to suppress.
We reject Benoit‘s claim that the evidence was insufficient to satisfy the interstate commerce element of each count because the government clearly proved “that the substantive content of the images ha[d], at some point, traveled in interstate or foreign commerce.” Sturm, 672 F.3d at 892.
We conclude that Benoit has waived the remaining issues for failure to advance reasoned argument. Although he notes these issues in his opening brief, Benoit fails to develop any argument suggesting the district court erred. See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir.2011) (“It is well-settled that arguments inadequately briefed in the opening brief are waived.” (quotations omitted)).
C
Lastly, Benoit contends the district court erred in refusing to reduce his offense level for acceptance of respon-
A defendant may receive a two-level reduction if he “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). The commentary explains that acceptance of responsibility includes admitting the conduct underlying the conviction, voluntary payment of restitution, voluntary surrender to authorities, assistance to authorities, and rehabilitative efforts. § 3E1.1 cmt. n. 1. However, the adjustment
is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).
§ 3E1.1 cmt. n. 2 (emphasis added). Pleading “not guilty and requiring the government to prove guilt at trial demonstrate denial of responsibility, regardless of how easily the government can prove guilt.” Portillo-Valenzuela, 20 F.3d at 394-95.
Benoit claims that the district court erred in denying him credit for acceptance of responsibility because he went to trial only to test legal theories and did not deny that he possessed the child pornography. However, “the question is not whether [defendant] actively asserted his innocence, but whether he clearly demonstrated acceptance of his guilt.” Id. at 394 (quotation omitted). The district court explained that Benoit “contested many aspect[s] of the government‘s case and did not agree or stipulate to evidence before or during the trial.” As a result, the government was forced to “present hundreds of graphic child pornography images and videos. Further, the government was required to call witnesses that resulted in a substantial cost for related expenses.” Although Benoit admitted he possessed child pornography to law enforcement, he nevertheless “put[] the government to its burden of proof at trial.” U.S.S.G. § 3E1.1 cmt. n. 2.
We conclude that the district court did not clearly err in denying the acceptance of responsibility adjustment under these circumstances. See Portillo-Valenzuela, 20 F.3d at 394-95 (affirming denial of reduction because defendant put the government to its burden despite confessing to law enforcement prior to trial); see also United States v. Garcia, 987 F.2d 1459, 1461-62 (10th Cir.1993) (same). Benoit‘s admission of guilt to the police prior to trial, when considered against the totality of Benoit‘s actions during trial, does not compel a finding that he clearly demonstrated acceptance of responsibility.
In addition, in both Garcia and Gauvin the district court granted an adjustment, and this court gave due deference to its determination. See Garcia, 182 F.3d at 1171; Gauvin, 173 F.3d at 806. We must give the district court similar deference in reviewing its decision to deny the reduction to Benoit. See McGehee, 672 F.3d at 877 (“[I]n Gauvin, we merely accorded the district court the requisite deference in upholding its decision to grant the two-level reduction. We did not indicate that other sentencing courts would be obliged to reach the same conclusion on similar facts.” (citation omitted)). Given the high deference we must pay to the district court‘s denial of acceptance of responsibility points at Benoit‘s sentencing, we conclude the district court did not err in denying Benoit a reduction. Benoit‘s assertions that he only went to trial to “preserve legal issues” and only contended that he was “legally innocent” do not persuade us.
VI
For the foregoing reasons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.9 On remand, the district court must vacate one of Benoit‘s convictions and the related sentence, and consider under the proximate cause standard discussed above whether Benoit‘s offense caused Vicky‘s losses.
Seth TAYLOR; Jacob Cobos, by and through his parents Ralph and Adrienne Cobos; Lacy Corman, by and through her parents Gary and Ladonna Corman; Arielle Green, by and through her parents Joseph and Socorro Green; Reed May, by and through his parents Bruce and April May, Plaintiffs-Appellants,
NIED.