Lead Opinion
OPINION OF THE COURT
Pursuаnt to a jury trial in the District Court for the Middle District of Pennsylvania, Donald R. Miller was found guilty of (1) receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2), (2) possessing the same images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and (3) marijuana possession, in violation of 21 U.S.C. § 844(a). Miller was sentenced to concurrent terms of 46 months’ imprisonment on the two child pornography counts and a concurrent term of 12 months’ imprisonment on the marijuana count. In calculating the applicable sentencing range under the Sentencing Guidelines, the District Court found that Miller, in the course of his testimony at trial, had committed perjury, and accordingly applied a two-level sentencing enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C 1.1 (2003). On appeal, Miller argues (1) that there was not sufficient evidence to support his conviction for receiving child pornography, (2) the Constitution’s double jeopardy clause barred entry of separate convictions for receiving and possessing the same images of child pornography, and (3) the record does not support the District Court’s finding that Miller committed perjury.
We conclude that Miller’s conviction for receiving child pornography was supported by substantial evidence. However, we further hold that (a) the double jeopardy clause barred convictions for both receiving and possessing the same images of child pornography, and (b) the entry of guilty verdicts on both of these counts was plain error. We also hold that Miller’s testimony regarding his collection of adult pornography was neither willfully false nor material, as those terms are to be understood in the context of perjury, and thus did not support a sentencing enhancement. Accordingly, we will vacate the District Court’s judgment and remand this case for re-sentencing consistent with this opinion.
I.
In January 2004, the FBI searched Miller’s home while investigating the uploading of child pornography onto a website hosted by Prime Media, a company in Utah. In the basement of the house, the agents found a zip disk containing 1200-1400 images,
In the month of the search, January 2004, a grand jury charged Miller with two counts of child pornography relating to the images uploaded onto the Prime Media website. In November 2004, a five-count superseding indictment charged Miller
At trial, the jury found Miller guilty both of receiving child pornography stored on the zip disk, count one, and of possessing the same images of child pornography, count four. The jury also found Miller guilty of marijuana possession, count five. However, the jury acquitted Miller of counts two and three. Miller timely filed a Rule 29(c) motion for judgment of acquittal, which the District Court denied.
Miller’s presentence investigation report (“PSR”), prepared by the Probation Office, recommended that the District Court apply three two-level enhancements to Miller’s base offense level under the Guidelines. Miller objected to these enhancements, and the District Court held an evidentiary hearing to address his objections. The District Court determined that one of the recommended enhancements was inapplicable,
The second enhancement was for obstruction of justice, pursuant to U.S.S.G. § 3C1.1 (2003).
The District Court entered separate judgments of conviction for counts one (receiving child pornography), four (possessing child pornography), and five (marijuana possession). The District Court imposed concurrent sentences of 46 months for each of the child pornography counts and a concurrent sentence of 12 months for the marijuana possession count.
We exercise plenary review over Miller’s sufficiency-of-the-evidence claim. “In exercising that review, we must interpret the evidence in the light most favorable to the government as the verdict winner,” United States v. Taftsiou,
We review Miller’s double jeopardy claim for plain error since he did not raise the issue before the District Court. See United States v. Jackson,
With respect to the District Court’s finding, for the purpose of applying the Guidelines, that Miller committed perjury, this court exercises plenary review over the District Court’s interpretation of the Guidelines. See United States v. Grier,
III.
Miller argues that there is not substantial evidence proving that he received child pornography. In addressing this claim, we must uphold a jury’s verdict “if there is substantial evidence from which a rational trier of fact could find guilt beyond a reasonable doubt.” United States v. Brown,
A.
Miller first raised his sufficiency-of-the-evidence claim before the District Court in a timely post-trial motion for acquittal pursuant to Fed.R.Crim.P. 29(c). The government contends that, though the motion was a proper vehicle for presenting the claim to the District Court, the motion failed to preserve the claim for appeal. To preserve a sufficiency-of-the-evidence claim for appeal, the government argues, a defendant must raise the issue at trial via a Rule 29(a) motion “[a]fter the govern
The government’s argument finds no support in the language of Rule 29(c). The rule provides that “[a] defendant may-move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict or after the court discharges the jury, whichever is later.” Fed.R.Crim.P. 29(c)(1). The rule goes on to clarify that “[a] defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.” Fed.R.Crim.P. 29(c)(3). These terms would seem to authorize a court of appeals to exercise plenary review over a claim raised in a Rule 29(c) motion without regаrd to whether the claim was earlier raised in a Rule 29(a) motion. It appears that each circuit court addressing this precise question has so held. See United States v. Holland,
This court, without confronting the question directly, appears to have treated a Rule 29(c) motion as preserving a sufficiency-of-the evidence claim irrespective of whether the claim was earlier raised at trial. In United States v. Thayer,
*62 Where the issues raised on appeal are preserved at trial, or through a timely motion for acquittal under Fed. R.Crim.P. 29(c), we will overturn a jury verdict only when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt.... But issues on appeal which were not raised before the District Court, we will review for plain error.
The government argues that we are compelled to depart from Thayer’s statement that we exercise plenary review over claims “preserved at trial, or through a timely motion for acquittal under Fed.R.Crim.P. 29(c).” Its argument is grounded in our statement, in a case more recent than Thayer, that a sufficiency-of-the-evidence claim is waived where it is not presеrved “by making a timely motion for judgment of acquittal at the close of the evidence.” United States v. Mornan,
B.
We turn, then, to whether Miller has raised a colorable sufficiency-of-the-evidence claim. Miller does not challenge the jury’s determination that he committed the offense of possessing child pornography in violation of § 2252A(a)(5)(B). But, while conceding that there may be substantial evidence proving his guilt of possession, Miller contends that this evidence is not sufficient to prove his guilt of receipt under § 2252A(a)(2). To conclude otherwise, Miller argues, is to “extinguish the distinction between the offense of knowing receipt and the offense of knowing possession.” Appellant’s Brief at 28.
The proposition underlying this argument — namely, the proposition that a conviction for receiving child pornography must be supported by a greater quantum of evidence than that minimally required to prove guilt of possessing child pornography — is correct. We appreciate that, in reviewing a sufficiency-of-the-evidence claim, we must “examine the totality of the evidence, both direct and circumstantial,” Gambone,
The government’s distinct evidentiary burden with respect to § 2252A(a)(2), visa-vis § 2252A(a)(5)(B), traces to the intent-elements of the offenses. Sections 2252A(a)(2) and 2252A(a)(5)(B) punish only those who “knowingly” receive, or “knowingly” possess, child pornography. In evaluating whether there is sufficient evidence to support a conviction under one of these provisions, we must review “ ‘whether the Government has adduced sufficient evidence respecting each element of the offense charged to permit jury consideration.’ ” United States v. Goldblatt,
The evidence required to establish the intent-element of § 2252A(a)(2) may be greater than that required to establish the intent-element of § 2252A(a)(5)(B) because, while a person who “knowingly receives” child pornography will necessarily “knowingly possess” child pornography, the obverse is not the case. Cf. United States v. Myers,
C.
Because Miller raised a colorable sufficiency-of-the-evidenee claim with respect to count one, receiving child pornography, we must recite the evidence adduced at trial pertaining to this count. The evidence was as follows:
In September 2003, someone created and uploaded child pornography onto a website that was hosted by Prime Media, the company in Utah. Prime Media identified the unique internet protocol (“IP”) address of the computer that was used to upload the images. The company turned the information over to the FBI, which concluded that the IP address was that of a computer in Donald Miller’s home.
The FBI searched Miller’s house in January 2004. The agents seized one computer from the basement and one from the living room. These computers were not state-of-the-art, and had small hard drives relative to other computers on the market. Though the computers had dial-up network capability, which enables users to access the internet through an ordinary telephone connection, they did not have the capacity to connect at the faster speeds of broadband. The computer in the basement, which was the focus of the government’s case, was equipped with an external zip drive, and the agents seized twenty-two zip disks that were also stored in the basement. The agents also seized 55.5 grams of marijuana from the bedroom of Miller’s wife.
One of the zip disks contained 1200-1400 images, according to the government’s expert witness (the defendant’s expert counted 1373 image files). The majority of the images depicted adult pornography, but, the government contended, twenty of the images depicted child pornography. The twenty images characterized by the government as child pornography were not among the ones that had been uploaded onto the website hosted by Prime Media.
At trial, there was testimony that, during the search of Miller’s home, the FBI’s supervising investigator, Agent James A. Kyle, questioned Miller. Agent Kyle and Miller, both of whom testified at trial, gave differing accounts of the interview. They agreed that the tenor of the discussion was cooperative, and that Miller volunteered the location of the marijuana. They also agreed that Miller (a) claimed he was un
The day after the search, Miller contacted Agent Kyle with further information. Miller told Agent Kyle that his computer had been infected with a virus the previous year, which might account for the uploaded images having been traced to his computer. Miller also informed Agent Kyle that he stored adult pornography on one of the twenty-two zip disks that were seized, and gave Agent Kyle the password to access that zip disk. At trial, the government presented evidence pertaining to the twenty images on the ziр disk that, the government contended, depicted child pornography. The government’s evidence included testimony by Agent Kyle and two FBI forensic experts, Agents James P. McDonald and Donald J. Price. According to this testimony, four of the twenty images were embedded with the addresses of websites, which were visible when viewing the images and which may have connoted an association with child pornography. On cross-examination, Agent Kyle testified that these address listings likely advertised websites other than those from which the images were obtained, and Miller’s expert witness, John R. Smith, stressed this point. Some of the image files bore sexually suggestive file names, but none of these file names suggested that they contained child pornography.
Agents McDonald and Price also testified as to when the images were copied onto the zip disk, and whether they had been viewed once copied onto the zip disk. The agents testified that, for each image file, there is a record of a “date created,” a “date written,” and a “date accessed.” The “date created” records the date and time a file was copied onto the storage medium, and thus would indicate when the file was copied onto the zip disk. The “date written” records the date and time a file was last opened and altered in some way; this date will change, for example, if an image is cropped or resized by a user. The “date accessed” records when a file was accessed, either by a viewer or by some sort of program such as a scheduled virus check. According to Agent Price’s testimony on cross-examination, “[y]оu can’t tell,” from a file’s “date accessed,” whether a file was opened automatically or by a user. A. 293.
Agent Price testified that seventeen of the twenty images presented by the government had a “date written” that was the same as its “date created.”
Miller testified at trial that he had not previously seen any of these images and “did not knowingly and willingly put” the images in question on the zip disk. A. 323. Miller admitted that he stored images, including adult pornography, on zip disks, and that he looked at adult pornography on the internet. However, he testified that he had never seen the twenty images in question, and that he only looked at images of adults that he understood to be
Miller’s expert witness, John R. Smith, testified in support of Miller’s claim that he was unaware of the images on the zip disk. According to Smith’s testimony, the thirteen images presented by the government that were copied onto the zip disk on October 13, 2002, were among 586 image files copied to the disk over a seven-hour period, at periodic intervals suggesting that the images were copied automatically, perhaps as the result of a virus. Smith then presented a demonstration of how four image files may be inadvertently downloaded into a subdirectory of a computer’s hard drive by a user who believes that he is downloading only a single image. If the user then saves the web page onto a zip disk or hard drive, according to Smith, the user will save all four of the images.
Prior to Smith’s testimony, Agent Price testified that he was unaware of any virus that downloads child pornography. In his rebuttal to Smith’s testimony, Agent Price testified that there were no web pages recovered from the zip disk, so the images found on the zip disk had been “extracted;” that is, they were not, as Agent Price characterized it, “embedded files.” A. 423. Agent Price also testified that it was “highly unlikely,” albeit possible, that someone would hack into another person’s dial-up internet connection and transmit data that would be attributed to the IP address of that person’s computer. A. 279.
D.
Having recited the evidence, we now assess whether it is sufficient to prove each element of the charged offense.
1.
We first conclude that there is substantial, circumstantial evidence supporting the inference that Miller downloaded child pornography, thus satisfying the act-element of receiving child pornography in violation of § 2252A(a)(2), the count one charge. The jury found Miller guilty of possessing a zip disk containing child pornography, which was among the twenty-two zip disks stored in the basement with Miller’s computer. Miller volunteered the password to this zip disk to Agent Kyle, informing him that there was adult pornography on the disk. At trial, Miller testified that he stored digital images on his zip disk, and that he looked at adult pornography on internet websites. Some of the images of child pornography on the disk advertised the names of websites, suggesting that they were initially downloaded from the internet. Cf. United States v. Henriques,
More difficult is the question whether Miller received the images knowingly. Other courts, confronting this question, have deemed at least four factors relevant to this inquiry: (1) whether images were found on the defendant’s computer, see United States v. Irving,
(1) The government adduced no direct, forensic evidence that the images were downloaded onto Miller’s computer. Agent Kyle testified that it was his “educated guess” that Miller downloaded the images onto the zip disk via the internet, perhaps by trading them in a chat room or by searching for them on a website. A. 195. However, Agent Kyle went on to testify, the government had no proof from Miller’s hard drive that supported this hypothesis. Agent Price, on cross-examination, acknowledged that, despite the FBI’s use of forensic software designed to recover deleted material from hard drives, the FBI had discovered no evidence that Miller’s computer had been used to upload or download child pornography.
(2) The second factor, the number оf images of child pornography found, likewise does not weigh in the government’s favor in light of the overwhelming number of adult images that were found. The government presented evidence pertaining to only twenty of the 1200-1400 images
(3) Nor does the third factor, whether the content of the images “was evident from their file names,” weigh in the government’s favor. Several of the images were embedded with the names of websites that possibly advertised child pornography, but — according to Agent Kyle’s and Smith’s testimony — this does not suggest that the images were obtained from those websites. Moreover, these website names would not be seen unless а person opened and viewed the files. While there is strong evidence that Miller eventually came to view some of the images of child pornography that were on the disk,
(4) Turning to the fourth factor, whether the defendant had knowledge of and an ability to access the storage space for the images, it is clear that Miller had access to the images on the zip disk. Indeed, Miller admitted to storing image files, including adult pornography, on the disk. In this respect, the facts of this case are more akin to the facts of Romm,
In light of this evidence, and considering all of the evidence in its totality, we cannot say that “no reasonable juror could accept the evidence as sufficient to support the conclusion of [Miller’s] guilt beyond a reasonable doubt.” United States v. Lacy,
E.
Miller makes two additional, time-related arguments in support of his sufficiency-of-the-evidenee claim. Miller argues that there was not substantial evidence proving that he received child pornography within the five-year statute-of-limitations for § 2252A(a)(2). Nor, Miller argues, is there substantial evidence proving that he received child pornography “on or about” the period between October 13, 2002 and December 20, 2002, as charged in the superseding indictment.
Miller waived his statute-of-limitations argument by failing to raise it at trial. See United States v. Oliva,
The government did not present direct evidence that the images on the disk were downloaded, and thus were received, “on or about October 13, 2002, through December 20, 2002,” the period alleged in the superseding indictment. Furthermore, the government’s expert, Agent Price, suggested that the images may have been downloaded sometime before they were copied onto the zip disk in October and December 2002. However, Miller does not identify, and we do not find, any prejudice to his substantial rights that can be traced to a variance between the date charged in the superseding indictment and the evidence adduced at trial. Miller was aware that the images on the zip disk formed the basis of the government’s case against him with respect to count one. He presented expert testimony attacking the government’s forensic evidence pertaining to these images, and addressed the images in his own testimony. We therefore cannot reverse Miller’s conviction on count one based on a variance that may exist between the government’s proof at trial and the dates charged in count one of the superseding indictment.
F.
Accordingly, we reject Miller’s sufficiency-of-the-evidence claim.
IV.
Miller next contends that the District Court’s entry of separate convictions for count one, receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2), and count four, possessing the same images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), violated the double jеopardy clause. Because Miller failed to raise this claim before the District Court, we review the entry of separate convictions for plain error; that is, we must determine whether the entry of separate convictions constitutes an “ ‘(1) error, (2) that is plain, and (3) that affectfs] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Vazquez,
A.
We first consider whether the District Court’s entry of separate convictions for counts one and four of Miller’s superseding indictment constituted an error. The double jeopardy clause bars courts from “prescrib[ing] greater punishment than the legislature intended” to impose for a single offense. Rutledge v. United States,
1.
Miller argues that possessing child pornography is a lesser-included offense of receiving child pornography, and thus that § 2252A(a)(2) (prohibiting receipt) and § 2252A(a)(5)(B) (prohibiting possession) “proscribe the same offense.” For the purpose of double jeopardy analysis, two offenses are the same if one is a lesser-included offense of the other under the “same-elements” (or Blockburger) test. This test “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’.... ” United States v. Dixon,
This court has not considered whether § 2252A(a)(5)(B) punishes a lesser-included offense of that punished by § 2252A(a)(2). However, it is clear that, as a general matter, possession of a contraband item is a lesser-included offense of receipt of the item. See Ball v. United States,
Drawing on Ball, the Ninth Circuit, in United States v. Kuchinski,
The government argues, however, that, even if § 2252A(a)(2) contains all the elements of § 2252A(a)(5)(B), the provisions punish separate offenses because there is a defense available for violations of § 2252A(a)(5)(B) that is not available for violations of § 2252A(a)(2). 18 U.S.C. § 2252A(d) provides an affirmative defense to a defendant who “possessed less than three images of child pornography” and “promptly ... took reasonable steps to destroy each such image” or “reported the matter to a law enforcement agency and afforded that agency access to each such image.” The government contends that this affirmative defense constitutes an additional “element” of § 2252A(a)(5)(B) for double jeopardy purposes because “it is more than theoretically possible for one to be guilty of receipt without being guilty of the purported lesser included offense of possession.” Appellee’s Brief at 47.
That pоssibility — whether or not more than theoretical — is immaterial to whether two offenses are the same under the same-elements test. Under Block-burger, as this court has explained, “[t]he elements of the offense are compared in the abstract, without looking to the facts of the particular case.” Government of Virgin Islands v. Joseph,
2.
Having concluded that §§ 2252A(a)(2) and 2252A(a)(5)(B) punish the same offense, triggering the presumption that “a legislature did not intend to impose two punishments for that offense,” Rutledge,
Having concluded (1) that the entry of separate convictions for counts one and four transgressed the double jeopardy clause, and thus constitutes an error, we turn to whether (2) that error is plain. In making this determination, we follow this court’s analysis in United States v. Jackson,
We find that the error in this case is likewise plain. As addressed above, we hold that possessing child pornography is a lesser-included offense of receiving child pornography, and thus that §§ 2252A(a)(2) and 2252A(a)(5)(B) punish the same offense. Though we reach this conclusion as a matter of first impression, we do so on the basis of the Supreme Court’s holding in Ball, which is well entrenched in our law and clear in its implications with respect to the double jeopardy question in this case. We therefore find that the error in entering separate convictions for cоunts one and four of Miller’s superseding indictment is, indeed, plain.
C.
Having determined that (1) the entry of convictions under both statutes was error and (2) the error is plain, we now consider (3) whether that plain error “affected substantial rights.” In Jackson, we held that the district court’s entry of separate convictions for the same offense affected the defendant’s substantial rights because “[t]he Fifth Amendment right to be free from duplicative prosecutions and punishment is a hallmark of American jurisprudence.”
D.
Having considered three factors of plain error review, we now turn to the fourth factor — namely, whether the District Court’s error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” In Jackson, the court determined that, although the district court imposed concurrent sentences for the separate convictions, its entry of the convictions seriously affected the fairness of the sentencing proceeding because the defendant received two special assessments of $100 instead of one. See id. These monetary penalties are not the sole costs resulting from the entry of separate convictions, however. In Rutledge, the Supreme Court observed that, in considering whether the entry of separate convictions imposes multiple punishments, “ ‘the potential adverse collateral consequences’ ” that inhere in each sepаrate conviction “ ‘may not be ignored.’ ”
The entry of separate convictions for violation of §§ 2252A(a)(2) and § 2252A(a)(5)(B) saddles the defendant with separate $100 special assessments and threatens him with “the potential adverse collateral consequences” of two con
E.
Where we conclude that a defendant was erroneously convicted for the same offense under two separate counts, but find the evidence sufficient to support either conviction, “the only remedy consistent with the congressional intent is for the District Court, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions.” Ball,
Y.
Miller also appeals the District Court’s determination that he committed perjury in testifying to the nature of his adult pornography collection, which formed the basis of the District Court’s addition of a two-level enhancement pursuant to U.S.S.G. § 3C1.1 (2003),
Q. You do collect pornography, correct?
A. I had a small collection of adult pornography, yes. It was primarily Playboy images.
Q. What’s that?
A. Primarily Playboy centerfolds.
Q. Primarily Playboy centerfolds?
A. Yes.
Q. Did you have sadomasochistic pictures?
A. Not that I’m aware of, no.
A. 311. The government then sought to introduce into evidence five images that were found on the zip disk containing child pornography. The images, which were of adults, were said by the government to be “sadomasochistic.” The District Court excluded these images as unduly prejudicial under Fed.R.Evid. 403, and the government asked no further questions of Miller on this subject.
A.
Section 3C1.1 of the 2003 version of the Guidelines provides for an enhancement if a defendant “willfully ... attempted to obstruct or impede, the administration of justice during the course of the ... prosecution” through conduct that is “related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense.... ” U.S.S.G. § 3C1.1 (2003).
Miller argues that his testimony as to his adult pornography collection was neither false nor material, and thus did not warrant a sentencing enhancement. We review the factual findings underlying the District Court’s perjury determination for clear error, while exercising plenary review over the District Court’s conclusions of law. See Grier,
Addressing this obligation, Dunnigan instructs that “if a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment or obstruction of justice, or an attempt to do the same, under the perjury definition we have set out.”
B.
Miller does not directly challenge the District Court’s factual determination that the zip disk containing child pornography also contained five images depicting adults “that could fairly be described as sadomasochistic pornography.” We cannot conclude, based on the testimony in the record as to the content of the images, that this finding is clearly erroneous. However, Miller’s testimony will support a sentencing enhancement for perjury only if he also gave willfully false testimony as to his understanding of the images. Thus, notwithstanding whether the images “could fairly be described as sadomasochistic pornography,” the court must consider (a) whether Miller was both aware that he possessed the assertedly “sadomasochistic” images, and (b) whether Miller himself considered those images to be “sadomasochistic.”
B.
Miller argues that the District Court had no valid basis for concluding that he gave willfully false testimony by saying— in response to the question “[d]id you have sadomasochistic pictures?” — “[n]ot that I’m aware of, no.” The District Court found this testimony to be willfully false for the following reason: “The jury found Miller guilty of knowingly possessing child pornography. Since the zip disk containing the sadomasochistic pornography was knowingly in his possession, we are of the view that he knowingly possessed the images themselves.” A. 31 (emphasis in original).
This recital is not, of itself, sufficient to support a finding that Miller gave willfully false testimony. “[I]n order to warrant the two point enhancement for obstruction of justice, the perjury of the defendant must ... be clearly established, and supported by evidence other than the jury’s having disbelieved him United States v. McLaughlin,
1.
The District Court’s finding that Miller gave willfully false testimony was predicated on Miller’s answer to a single question at trial:
Q. Did you have sadomasochistic pictures?
A. Not that I’m aware of, no.
In evaluating whether this testimony can sustain a finding of perjury, we must consider whether, in the context of the defendant’s testimony, the government’s question is open to multiple interpretations.
“Precise questioning is imperative as a predicate for the offense of perjury.” Bronston v. United States,
[W]e perceive no reason why Congress would intend the drastic sanction of a perjury prosecution to cure a testimonial mishap that could readily have been reached with a single additional question by counsel alert — as every examiner ought to be — to the incongruity of petitioner’s unresponsive answer. Under the pressures and tensions of interrogаtion, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it.... It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.
While our opinion in Serafini speaks to whether a question is so “fundamentally ambiguous” that it cannot be submitted to the jury as the basis for a finding of perjury, it compels us to consider whether, in the context of § 3C1.1, a question is sufficiently precise to support the factual findings made by the District Court. As the Tenth Circuit has stated: “The purpose of the rule of fundamental ambiguity is three-fold, namely, to (1) preclude convictions grounded on surmise or conjecture; (2) prevent witnesses from unfairly bearing the risks of inadequate examination; and (3) encourage witnesses to testify (or at least not discourage them from doing so).” United States v. Farmer,
2.
In two respects, the question put to Miller, the answer to which the District Court found willfully false, lacked the precision adequate to support the District Court’s finding. First, the government did not lay a suitable foundation for the question: “Did you have sadomasochistic pictures?” It is apparent that, in asking this question of Miller during cross-examination, the government sought to elicit testimony concerning five specific image files, depicting adults, that were found on a zip disk containing 1200-1400 image files. It does not appear that the government provided Miller with notice that it was these five images to which it was referring. The government proffered no testimony describing the image files, and was precluded from admitting the images themselves into evidence. Furthermore, the government made no effort to refresh Miller’s recollection by showing him copies of the images (without introducing them into evidence). Without such a foundation, there is no basis for concluding that Miller was aware of which assertedly “sadomasochistic pictures” the prosecutor might have had in mind.
Second, even if Miller had been aware that he possessed the five image files to which the government was alluding, the government’s questioning did not establish that he gave a willfully false answer by denying that he possessed “sadomasochistic pictures.” The meaning of the term “sadomasochistic” is both contested and context-dependent. See, e.g., United States v. Turchen,
Because the government did not clarify what Miller understood the term “sadomasochistic” to mean, we have no basis for concluding whether Miller thought that he possessed “pictures” that would fit that description. Accordingly, we conclude that the government failed to engage in the “[pjrecise questioning that Bronston holds to be ‘imperative as a predicate for the offense of perjury.’ ”
D.
Miller also argues that the District Court erred in finding that his allegedly false testimony concerned a “material matter.” We exercise plenary review over this determination, as it involves a mixed question of law and fact. See United States v. Gaudin,
There is a significant distinction to be drawn between a collection of Playboy images and a collection of pornography which includes images of women being raped and tortured. The images in a collection obviously reflect the collector’s preferences and interests. A collection entirely comprised of Playboy centerfolds may be viewed as more acceptable or “mainstream.” A collection which includes sadomasochistic pornography may well reflect interests in more deviant sexual practices, or at least in other images depicting such conduct.
A. 31. Therefore, the District Court concluded, ' Miller’s testimony “constitutes false testimony on a material matter. His statement, if believed by the jury, would have influenced or affected their resolution of the offense charged in count 1 of the indictment....” A. 32.
Two appellate courts have confronted a similar question, in the context of determining the propriety of admitted evidence, and concluded that a defendant’s interest in unusual adult pornography is irrelevant to whether he is guilty of a child pornography count. In United States v. Harvey,
The ... X-rated material, which did not involve either child pornography or simulated child pornography, did not bear on the disputed trial issues, and thus was not relevant. See Fed.R.Evid. 401 and 402[ (providing that “evidence which is not relevant is not admissible”) ].... The[] questions and the answers [regarding the videos] concerned material for which Harvey was not being prosecuted and that did not bear on the disputed trial issues. We have little difficulty in concluding that the likely effect of this evidence was to create disgust and antagonism toward Harvey, and resulted in overwhelming prejudice against him.
Id.
The Fifth Circuit drew upon this holding to conclude, in Ward v. Dretke,
We can identify no objectively reasonable basis in this case for permitting the sentencing jury to view the images of adult bestiality. The images did not form part of the factual basis for the charges to which Ward plead guilty, and had no relevance to the jury’s sentencing determination apart from demonstrating the depths of depravity to which Ward had sunk. Even if the evidence were relevant in some tangential way to the determination of Ward’s sentence, we believe it highly probable that considerations of unfair prejudice would have sufficed to keep this evidence from the jury.
Id. at 494-95 (citing Harvey,
We agree with the Harvey and Ward analyses, and find them relevant to whether testimony regarding a defendant’s interest in adult pornography is “related to [ ] the defendant’s offense” of child pornography “and any relevant conduct.” U.S.S.G. § 3C1.1 (2003). As the District Court did not point to any empirical or theoretical grounds for its conclusion, and we cannot identify such grounds, we follow the reasoning of the Harvey and Ward courts and reject the proposition that a defendant’s taste for an unusual genre of adult pornography is material to his interest in child pornography. We are therefore of the view that the District Court erred in finding that Miller gave false testimony on a material matter.
E.
In summary, we hold that the record does not support the District Court’s determination that (a) Miller’s testimony, with respect to the assertedly “sadomasochistic pictures,” was willfully false, or (b) the testimony was material. Accordingly, we conclude that it was error to find that Miller committed perjury and, on that ground, to add to the Guideline calculation of Miller’s sentence an enhancement for obstruction of justice.
VI.
For the foregoing reasons, we will VACATE the District Court’s Judgment and Commitment Order, and will REMAND the case for further proceedings in accordance with this Opinion.
Notes
. A "zip disk” is a portable storage device that looks similar to a conventional 3.5-inch "floppy” disk, but has significantly greater storage capacity than a floppy disk. A zip disk may be used on a computer equipped with a “zip drive.”
.The PSR recommended an enhancement for possessing pornographic material depicting children who are prepubescent or under twelve years of age. The District Court determined that the government had failed to prove by a preponderance of the evidence that there was a factual basis for this enhancement.
. The District Court applied the 2003 version of the Guidelines, which was effective at the time of the offenses charged in counts one and four of the superseding indictment, rather than the 2006 version of the Guidelines, which was effective at the time of Miller's sentencing.
. The "PROTECT Act of 2003” amended § 2252A to impose a prison sentence of "not
. A number of years ago, this court held that a finding of perjury, for purposes of sentencing, must be supported by "clear and convincing” evidence. See United States v. Arnold,
. The Castro-Lara court stated its position as follows:
We feel confident that Rule 29(c) means precisely what it says. Consequently, even absent any motion for judgment of acquittal at trial, a defendant who files a timeous post-trial motion for acquittal stands on the same footing as a defendant who moves for acquittal at the close of all the evidence; and the former is, therefore, entitled to the benefit of the same standard of appellate review as the latter.
. The government cites cases from two other circuits that, it contends, support its position. See United States v. Chance,
. Both the government’s expert, Agent Donald J. Price, an FBI forensic analyst, and the defendant’s expert, John R. Smith, owner of a business that configures and supports computer networks, acknowledged the possibility that child pornography could be unknowingly downloaded onto a hard drive as the result of a virus, or "spyware.” They disagreed, however, as to whether it was likely that this possibility occurred in Miller’s case. Agent Price testified that he was unaware of there ever being, in the prosecutor’s words, "any reports of a child porn dropping virus.” A. 286. Smith demonstrated how an image could be inadvertently downloaded onto a computer. Though Agent Price testified that he had not heard of a "virus program capable” of accounting for Miller’s possession of the images, he went on to explain that such a virus would have to “take the zip diskette out of the case, put it into the computer ..., take the zip out, put it back in the case and delete the original images off the computer.” A. 285-86, 382.
. See also John Schwartz, Acquitted Man Says Virus Put Pornography on Computer, N.Y. Times, August 11, 2003 (quoting, Mark Rasch, former head of U.S. Department of Justice's computer crimes unit, as stating, with respect to defense in British case that virus downloaded child pornography, "[t]he scary thing is that the defense might be right”).
. The jurisprudence concerning the receipt and possession provisions of 18 U.S.C. § 2252 and the comparable provisions of 18 U.S.C. § 2252A often converges. Section 2252(a)(2) prohibits the receipt of material "transported [in interstate or foreign commerce] by any means including by computer” that depicts "a minor engaging in sexually explicit conduct,” and § 2252(a)(4)(B) prohibits the possession of such material. These statutory provisions have been characterized as "materially identical” to § 2252A(a)(2) and § 2252A(5)(B), which, respectively, prohibit the receipt and possession of child pornography. United States v. Malik,
. These file dates were October 13, 2002 (ten images); October 29, 2002 (one image); December 17, 2002 (five images); and December 20, 2002 (one image).
. Agent Price testified, however, that the images may have been downloaded directly onto the zip disk from the internet without first being stored on the computer's hard drive, or may simply have been downloaded off of the hard drive of some other computer. Moreover, Agent Price testified, even if the files hаd, at one point, been downloaded onto the hard drive of Miller's computer, they would not have been found by the FBI’s forensic software if the computer’s operating system, Microsoft Windows, had "overwritten” the files, after they were deleted, with newer files. A. 301. According to Agent Price, Microsoft Windows overwrites deleted files on a continual basis to avoid "fragmenting” the hard drive with gaps of free space that are clustered between other files, and thus unusable for storage.
Smith, the defendant’s expert, spoke to this testimony. Smith testified that two-thirds of the hard drive on Miller’s basement computer was unused, and consequently that the computer’s operating system (Microsoft Windows) was unlikely to have overwritten any files. Agent Price does not appear to have addressed this evaluation in his rebuttal to Smith’s testimony.
. Specifically, the "dates written” of three of the images on the zip disk, all of which the District Court found to be child pornography, are subsequent to the date they were copied onto the disk (i.e. the images’ “dates created”).
. Judge Becker also recognized two other core functions of the rule against variance: (1) it “protects the right of each defendant not to be tried en masse for the conglomeration of distinct and separate offenses committed by others” and (2) “helps to minimize the danger that the defendant may be prosecuted a second time for the same offense.” Schurr,
. The Oxford English Dictionary (2d ed.1989) defines "receive" as "[t]o take in one’s hand, or into one’s possession (something held out or offered by another); to take delivery of (a thing) from another, either for oneself or for a third party.”
. Miller’s presentence investigation report also recommended the obstruction of justice enhancement on the basis that Miller gave perjured testimony regarding the marijuana he was found to have possessed. The District Court rejected this recommendation.
. During Miller’s cross-examination, the government made two requests to introduce the images. When its first request was denied, the government stated an intention to reintroduce the images in its rebuttal, and the District Court said it would consider the request at that time. When the government made its second request during Miller's cross-examination, shortly following its first request, Miller’s counsel said that he would not object to the government’s introduction of "non-prejudicial adult pornography” to impeach Miller’s testimony, but that he objected to the admission of images of an extremely prejudicial nature that “are not indicative of the majority of the images” on the zip disk. A. 317. Despite this concession, the government did not seek to introduce any other images to impeach Miller’s testimony. It did, however, elicit testimony from Smith, Miller's expert, that he found images on the disk that he considered to depict sadomasochistic pornography.
. As noted above, the District Court applied the 2003 version of Guidelines, which was in effect at the time of Miller's offense. The 2003 version of § 3C1.1 states:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justiсe during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1 (2003). The provision was revised in 2006 to punish obstructing the administration of justice "with respect to," rather than "during the course of” the prosecution.
. The above-quoted McLaughlin-sentence reads, in full:
[I]n order to warrant the two point enhancement for obstruction of justice, the perjury of the defendant must not only be clearly established, and supported by evidence other than the jury’s having disbelieved him, but also must be sufficiently far-reaching as to impose some incremental burdens upon the government, either in investigation or proof, which would not have been necessary but for the perjury.
McLaughlin,
. The government argues, without proffering a definition for the term “sadomasochistic,” that the brutality of the images in question is so manifest that any truthful viewer would find the term to be descriptively correct. However, in concluding that the images “could fairly be described as sadomasochistic," the District Court did not find that any truthful viewer would necessarily describe them as such, an undertaking that would warrant consideration of popular understandings of the term "sadomasochism.” See, e.g,, Turchen,
. Just over thirty years ago, in United States v. Crocker,
.See United States v. Thundershield,
. In Ward, a habeas petitioner, when he was a defendant in Texas state court, pled guilty to charges including possession of child pornography, and elected to have a juiy determine his sentence. The jury sentenced the defendant-petitioner to 66 years' imprisonment. The district court found that the petitioner received ineffective assistance of counsel at the punishment trial. The Fifth Circuit reviewed this determination under AEDPA's constraint that a state court determination may be reversed only if it “involved an unreasonable application of[] clearly established Federal law....’’ 28 U.S.C. § 2254(d)(1). Bound by this constraint, the Fifth Circuit concluded that the state court did not unreasonably apply the second prong of the “performance and prejudice” test, as set forth in Strickland v. Washington,
Concurrence Opinion
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
There were at least 1200 images on the zip disk and the Gоvernment only characterized twenty-less than 2% — of them as 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.
. 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.