UNITED STATES of America, Plaintiff-Appellee, v. Terry Burton KIMBROUGH, Defendant-Appellant.
No. 94-10088.
United States Court of Appeals, Fifth Circuit.
Nov. 9, 1995.
69 F.3d 723
Although North Carolina law does not afford a right to assert contributory negligence in these circumstances, I do not mean to imply that evidence of plaintiffs’ smoking habits would routinely be withheld from a jury. A history of cigarette smoking may be relevant to the question of the proximate cause of a plaintiff‘s injuries, see In re Manguno, 961 F.2d 533 (5th Cir.1992), or perhaps to the amount of damages a plaintiff may recover, see Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1138-40 (5th Cir.1985).2 These questions, however, are not now before us. The jury has found that prolonged exposure to defendant‘s product was a substantial contributing cause of plaintiffs’ lung condition, and I do not think that the company may assert a defense of contributory negligence to escape all liability.
In sum, I would affirm the judgment of the district court.
J. Robert Flores, Bruce Taylor, Dept. of Justice, Washington, DC, Tanya K. Northrup, Paul E. Coggins, U.S. Atty., Lubbock, TX, for Appellee.
Before REAVLEY and EMILIO M. GARZA, Circuit Judges, and PRADO1, District Judge.
PRADO, District Judge:
Terry Burton Kimbrough appeals his convictions for two counts under
BACKGROUND
In 1992, the United States Customs Service (USSC) became aware of a computer bulletin board system (BBS) in Denmark known as BAMSE. USSC began to investigate BAMSE and discovered the BBS was involved in the international distribution of pornography, including child pornography, via computer. USSC also uncovered two additional Danish BBS‘s which included child pornography. Subscribers to these BBS‘s can transport or “download” Graphic Interchange Format (GIF) files through modems attached to their computers. Once downloaded, the files can be viewed as pictures on the computer screen and they can be printed.
Further investigation disclosed that a person identifying himself as Terry Kimbrough with the defendant‘s office address and phone number had downloaded two GIF files containing child pornography.
In February of 1993, USSC held a three-day briefing for its agents on its investigation, known as Operation Long Arm, into the illegal importation of child pornography from computer bulletin boards. The agents received training regarding the applicable law, technical methods for computer searches and seizures and evidence handling. After the training program, Agents Kemp Johnson and Eric Rembold commenced further investigation of Kimbrough and, based on the information uncovered, eventually applied for search warrants for Kimbrough‘s home and business in Abilene, Texas.
On March 4, 1993, agents executed search warrants for Kimbrough‘s residence and business. During the execution of the warrants, they seized a number of items including computers and computer related equipment, computer disks and accessories, videocassette and audio cassette tapes, magazines, receipts, ledgers, and various records. Among the seized materials were several depictions of child pornography primarily recovered from the computer equipment.
Kimbrough was indicted in Count 1 and Count 2 for knowingly receiving, by computer, a visual depiction, which had been transported in interstate commerce and the production of which involved the use of a minor engaging in sexually explicit conduct in violation of
DISCUSSION
Legality of Search and Seizure Issue
Kimbrough contends that the search warrants were unconstitutional on their face because, considering that many of the items were “presumptively protected speech,” the warrants failed to sufficiently specify with particularity the items to be seized. The warrants sought seizure of
Tapes, cassettes, cartridges, streaming tape, commercial software and manuals, hardware, computer disks, disk drives, monitors, computer printers, modems, tape drives, disk application programs, data disks, system disk operating systems, magnetic media-floppy disks, CD ROMs, tape systems and hard drive, other computer related operational equipment, and other similar materials in addition to, magazines, photographs, negatives, photographic slides, video cassette tapes or other visual depictions or equipment used to visually depict a minor engaging in sexually explicit conduct, and, bills, correspondence, receipts, ledgers, Postal receipts and telephone records all of which show orders and deliveries to or from any known foreign or domestic distributor of child pornography.
The Fourth Amendment prohibits issuance of general warrants allowing officials to burrow through a person‘s possessions looking for any evidence of a crime. Andresen v. Maryland, 427 U.S. 463, 480 (1976). A warrant must particularly describe the place to be searched and the person or things to be seized. Id.; United States v. Layne, 43 F.3d 127, 132 (5th Cir.), cert. denied, --- U.S. ---, 115 S.Ct. 1722, 131 L.Ed.2d 580 (1995). In testing whether a specific warrant meets the particularity requirement, a court must inquire whether an executing officer reading the description in the warrant would reasonably know what items are to be seized. Layne, 43 F.3d at 132. In circumstances where detailed particularity is impossible, generic language is permissible if it particularizes the types of items to be seized. Id. In cases where warrants seek to seize material presumptively protected by the First Amendment, the level to which the items to be seized must be particularly described is heightened. Marcus v. Search Warrant, 367 U.S. 717, 731 (1961).
The warrants here are sufficiently particular to withstand Kimbrough‘s challenge. The language in the warrants properly limited the executing officers’ discretion by informing them what items were to be seized. See Layne, 43 F.3d at 132-33 (holding that a warrant seeking “Child pornography; records of victims; drawings; pictures; computer disks; sexual devices; videotapes; child abuse books; magazines; audio tapes; and any other obscene or child pornographic material” was particular enough to limit the officer‘s discretion).
Kimbrough‘s reliance on cases involving obscenity is misplaced.2 The determination of which presumptively protected materials are obscene is a legal one and, therefore, not to be left to the discretion of the executing officers. Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison, is a factual determination that
Kimbrough further contends that, even assuming the warrants were valid, they were illegally executed. He argues that the law enforcement agents seized virtually every record, document and paper found at the premises, and confiscated every video and audio cassette tape. The Government denies that the search was overbroad. Specifically, the Government, through the testimony of Agent Johnson at the suppression hearing before the trial court, argues that the seizure of all video and audio tapes was necessary because the titles of such tapes were not dispositive of their content and that the absence or presence of child pornography in such items could not be determined by a cursory examination on the premises.
Blatant disregard by executing officers of the language of a search warrant can transform an otherwise valid search into a general one and, thus, mandate suppression of all evidence seized during the search. United States v. Rettig, 589 F.2d 418, 423 (9th Cir.1978); United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir.1988). The execution of a search warrant “must be one directed in good faith toward the objects specified in the warrant.” Gurleski v. United States, 405 F.2d 253, 258 (5th Cir.1968), cert. denied, 395 U.S. 981 (1969).
Kimbrough has failed to meet his burden of proof in challenging the execution of the search warrants. See United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir.1994); United States v. Vigo, 413 F.2d 691, 693 (5th Cir.1969). The fact that the executing officers chose not to review each video tape, audio tape and document on the premises does not make this search presumptively invalid. While the executing officers seized numerous documents that were later determined to be irrelevant to the case against Kimbrough, the record reflects significant numbers of documents were left at the scenes after an initial review showed them to be not within the scope of the warrants. Kimbrough has not directed our attention to specific examples of seized items that would demonstrate an absence of the executing officers’ good faith belief that the items were described in the warrants. We find this argument to be without merit.
Multiplicitous Counts Issue
Kimbrough contends that Counts 3 and 4 of the indictment against him are multiplicitous and should have been dismissed or the Government should have been required to elect a single count on which to proceed. We review trial court rulings on multiplicity claims de novo. United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir.), cert. denied, --- U.S. ---, 114 S.Ct. 605, 126 L.Ed.2d 570 (1993). The rule against multiplicity stems from the 5th Amendment to the Constitution which forbids placing a defendant twice in jeopardy for one offense. The rule prohibits the Government from charging a single offense in several counts and is intended to prevent multiple punishments for the same act. Id.; United States v. Heath, 970 F.2d 1397, 1401 (5th Cir.1992), cert. denied, --- U.S. ---, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993); United States v. Hurt, 795 F.2d 765, 774 (9th Cir.1986), amended on other grounds, 808 F.2d 707 (9th Cir.), cert. denied, 484 U.S. 816 (1987). Kimbrough raised this challenge to the charges against him prior to trial by way of a motion to dismiss and at trial as part of his motion for judgment of acquittal. The trial court denied both requests.
The Appellee first argues that the grouping of the offenses by the trial court under the Sentencing Guidelines removed the danger of multiple punishments. It contends that for “offenses that are to be grouped under U.S.S.G. § 3D1.2, the applicability of a single punishment prevents any Fifth or Eighth Amendment violations.” This argument completely misstates applicable law. This Court has explicitly held that for double jeopardy purposes, sentences are not truly concurrent where a mandatory special assessment is separately imposed on each conviction. United States v. Berry, 977 F.2d 915, 920 (5th Cir.1992). Kimbrough‘s sentence included mandatory special assessments for each count. Furthermore, the Supreme Court precedent clearly holds that, for purposes of double jeopardy, a “separate conviction, apart from the concurrent sentence, has potential adverse ... consequences.” Ball v. United States, 470 U.S. 856, 865 (1985).
The Appellee next argues that the materials that give rise to the two possession-based counts are different because the materials in Count 3 were themselves transported in interstate commerce while the materials referenced in Count 4 were produced using materials that had been transported in interstate commerce. The Appellee attempts to compare the separate counts here with counts charging possession of separate drugs or weapons. However, each count charges possession of “three or more” items and, under the particular facts of this case, each of the items listed in counts 3 and 4 both traveled in commerce (via the computer) and was produced using materials that traveled in interstate or foreign commerce.
Both Counts 3 and 4 charge violations of the same statute on or about the same date and both involve possession of three or more items. The only difference between the charges relied on by the government in their brief is the jurisdictional element—whether the pictures or the materials used to produce them traveled in commerce. We find this distinction to be artificial and an unlawful attempt to divide a single offense into multiple offenses.5 See Sanabria v. United States, 437 U.S. 54, 66 n. 20 (1978) (“A single offense should normally be charged in one count rather than several, even if different means of committing the offense are alleged.“)
We must defer to the legislature‘s determination of whether a specific course of conduct constitutes one or more separate crimes. Sanabria, 437 U.S. at 70. In construing this statute, we look first to the plain language chosen by Congress. United States v. Barlow, 41 F.3d 935, 942 (5th Cir.1994), cert. denied, --- U.S. ---, 115 S.Ct. 1389, 131 L.Ed.2d 241 (1995). In this case, the plain language of the statute‘s requirement that a defendant possess “three or more” items indicates that the legislature did not intend for this statute to be used to charge multiple offenses.6 Furthermore, to the extent that the statute can be considered ambiguous, the rule of lenity requires us to resolve that ambiguity in favor of Kimbrough. See United States v. Cooper, 966 F.2d 936, 943 n. 11 (5th Cir.), cert. denied, --- U.S. ---, 113 S.Ct. 481, 121 L.Ed.2d 386 (1992) (“When Congress fails to indicate the allowable unit of prosecution with clarity, doubt as to congressional intent should be resolved in favor of lenity for the accused.“) We find that Counts 3 and 4 of Kimbrough‘s indictment are multiplicitous. See Bell v. United States, 349 U.S. 81, 84 (1955) (holding “if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses“). Therefore, the trial court should vacate Kimbrough‘s conviction on either of Counts 3 or 4. See Heath, 970 F.2d at 1402; Brechtel, 997 F.2d at 1112.
Kimbrough further argues that his entire conviction should be reversed as he has been prejudiced by the multiplicitous indictment through the possibility that the repeated assertions of details regarding the two counts could have confused the jury by suggesting that several crimes were committed rather than one. We do not find that the trial court‘s refusal to dismiss one of the two counts requires reversal of Kimbrough‘s entire conviction. The trial court charged the jury that, “Each count and the evidence pertaining to it should be considered separately.” Kimbrough has not presented specific factual allegations of potential confusion. We find that Kimbrough has failed to demonstrate that any jury confusion was sufficient to rise to the level of a constitutional violation.
Access to Evidence Issues
Kimbrough next argues that the Government‘s refusal to allow him to copy the items of evidence charged in the indictment and in restricting his access to the evidence violated his constitutional rights to due process and effective assistance of counsel. On September 10, 1993, the trial court granted Kimbrough‘s motion for discovery to the extent that it requested information discoverable pursuant to
Kimbrough‘s motion had requested inspection and copying of the materials in question.
Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs [and] tangible objects ... which are within the possession ... of the government ... and which are material to the preparation of the defendant‘s defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.
Child pornography is illegal contraband. See
Fair Trial Issues
Kimbrough contends that he was denied a fair trial because he was refused an adequate opportunity to prepare for trial and because the District Court admitted numerous Government exhibits despite the Government having listed them as exhibits on the day of trial. A trial court‘s denial of a continuance is reviewed for abuse of discretion, viewed in light of all the circumstances, and requires a defendant to show serious prejudice. United States v. Kelly, 973 F.2d 1145, 1147-48 (5th Cir.1992); United States v. Terrell, 754 F.2d 1139, 1149 (5th Cir.), cert. denied, 472 U.S. 1029 (1985).
One month before trial, Kimbrough filed a motion pursuant to
On October 6, 1993, the Government tendered its exhibit list containing 20 exhibits. The morning of trial, the Government submitted an amended exhibit list containing more than 70 exhibits. Kimbrough objected on the record to the introduction of these new exhibits. The Government responded that the earlier exhibit list had included most of the exhibits on the amended list and had merely not listed them individually. The Government noted that the remainder of the new exhibits were added in response to the defendant‘s exhibit list. The trial court found that the arguments were best taken up on an item-by-item basis as the exhibits were offered during the trial. Kimbrough made such objections as the trial progressed and the trial court overruled those objections.
Although we cannot condone unreasonable restriction of meaningful access to potential exhibits, Kimbrough has not shown the serious prejudice necessary to succeed on this argument. Any error, therefore, was harmless. Kimbrough‘s counsel was given two weeks notice of the week that the exhibits would be available for his inspection. As discussed above, Kimbrough‘s conclusory assertion that the amount of material seized and length of the Government‘s review of the material demonstrates prejudice is insufficient to succeed on this argument. See Cronic, 466 U.S. at 663. Kimbrough has failed to support his assertions that he was precluded from having an adequate opportunity to review the material or obtain an expert for trial. The nature of the defense raised—that the depictions had been altered and were not of actual children—would not require review of each document. Furthermore, while Kimbrough claims it was necessary for him to “consult with experts in the field of computer technology and pediatric and adolescent anatomy ... and interview potential witnesses involved in the Government‘s investigation,” he has failed to show the connection between his failure to accomplish these tasks and the trial court‘s denial of his motions for continuance. Similarly, he argues it was necessary to “have an analysis conducted of the computer files seized” but fails to describe what type of analysis would have been done and what he expected the analysis would have demonstrated. On the facts and arguments before us, we are unable to say that the trial court‘s decision to deny Kimbrough‘s motions for continuance prevented him from receiving a fair trial. We therefore find this argument to be without merit.
Kimbrough‘s argument regarding the Government‘s amended exhibit list is similarly unconvincing. The Government contends that the expanded exhibit list added only two pieces of evidence, both of which were necessary for rebuttal of Kimbrough‘s defense. The Government contends that the remainder of the list merely specified which portions of the previously identified exhibits were to be introduced. Kimbrough, who bears the burden on this issue, has failed to rebut the government‘s assertion and an examination of the record supports the Government‘s contention. We find Kimbrough‘s assertion that he was unfairly prejudiced by the admission of exhibits listed in the Government‘s amended exhibit list to be meritless.
Constitutionality of Title 18 U.S.C. Section 2252 Issues
Kimbrough contends that
Jury Instruction Issue
Kimbrough contends that the jury instructions did not explain the Government‘s burden on proving the mens rea as to each element of the offenses. The Court instructed the jury:
As to counts one and two, Title 18, United States Code, Section 2252(a)(2), makes it a crime for any person to knowingly receive any visual depiction shipped or transported in foreign commerce by any means, including by computer, if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct, and such visual depiction is of such conduct.
For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First: That the defendant knowingly received certain visual depictions;
Second: That such visual depictions were shipped or transported in foreign commerce;
Third: That such visual depictions were shipped or transported in foreign commerce by any means, including by computer;
Fourth: That the production of such visual depictions involved the use of a minor engaging in sexually explicit conduct;
Fifth: That such visual depictions are of minors engaged in sexually explicit conduct; and
Sixth: That the defendant knew that at least one of the performers in such visual depictions was a minor.
The instructions as to counts three and four are substantially similar but substitute the possession language for the receiving language. Kimbrough argues that the Court should have instructed the jury that “it must find Defendant knew the producing of the depiction involved the actual use of a minor engaging in sexually explicit conduct.”
As noted above, in X-Citement Video, Inc., 115 S.Ct. at 472, the Supreme Court held that the term “knowingly” in
Sentencing Guidelines Issues
Kimbrough objects to three aspects of his Presentence Report (“PSR“) and the resulting calculation of his sentencing guidelines. In examining the sentence imposed, we review the trial court‘s findings of fact for clear error and review purely legal conclusions or interpretations of the meaning of a guideline de novo. United States v. Mejia-Orosco, 867 F.2d 216, 221 (5th Cir.1989), cert. denied, 492 U.S. 924 (1989); United States v. Dean, 59 F.3d 1479, 1494 (5th Cir.1995). We review the trial court‘s determination “that conduct is relevant to the offense of conviction ... under a clearly erroneous standard.” United States v. Cockerham, 919 F.2d 286, 289 (5th Cir.1990).
A. Two Level Increase for Prepubescent Minor or Minors Under the Age of 12
Kimbrough objected at sentencing to the increase for receiving materials involving prepubescent minors or minors under the age of 12. The PSR recommended this two-level increase under
At trial, United States Customs Office Agent Eric Rembold testified that a listing of a file entitled “BAM Young List” had been
B. Four Level Increase for Material Portraying Sadistic or Masochistic Conduct
Kimbrough also objected at sentencing to the 4 level increase for material portraying sadistic or masochistic conduct or other violence. The PSR recommended this four-level increase under
At trial, Agent Rembold testified that Kimbrough had downloaded file MBON006.JPG and file MBON007.JPG from the BAMSE. He further testified that Kimbrough‘s computer contained file descriptions of these two files: MBON006.JPG is described as “Bound and Gagged Spread in Chair” and MBON007.JPG is described as “Same Girl Almost Same Position.” The PSR stated that “Two of the child pornography pictures admitted into evidence are those of a female minor in bondage. Adult pornography possessed by the defendant also displayed sadomasochistic acts.” We find that the trial court heard sufficient evidence at trial to conclude that Kimbrough intentionally ordered and possessed pornography which depicted sadistic or masochistic conduct. We therefore find no clear error in the four-level enhancement pursuant to
C. Five Level Increase for Distribution of Obscene Material
Finally, Kimbrough objected at sentencing to the five-level increase for his purported intent to distribute child pornography. The PSR recommended this five-level increase under
A sentencing court must be afforded wide discretion in the sources of information it may consider. United States v. Schmeltzer, 20 F.3d 610, 613 (5th Cir.), cert. denied, --- U.S. ---, 115 S.Ct. 634, 131 L.Ed.2d 540 (1994). Therefore, Kimbrough bears the burden of demonstrating that information the trial court relied on in sentencing is “materially untrue.” See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.), cert. denied, --- U.S. ---, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994); United States v. Flores, 875 F.2d 1110, 1113 (5th Cir.1989).
At sentencing, Agent Rembold testified that he recovered evidence from Kimbrough‘s office computer and a back-up tape which showed Kimbrough had set up his own bulletin board system named “Unbridled, Unlimited.” A bulletin board system is designed to distribute and receive files. Agent Rembold testified that Kimbrough‘s bulletin board system included closed files containing pornographic material depicting children. Agent Rembold also testified that the search had uncovered advertisements for “Unbridled, Unlimited” which indicated that the bulletin board was a sexually oriented bulle-
Kimbrough offered no evidence to rebut Agent Rembold‘s testimony. Under these circumstances, the sentencing court was justified in relying on the testimony and on the PSR in finding that the five-level increase was warranted.
Cumulative Effect Issue
Finally, Kimbrough argues that even if no single alleged impropriety rose to the level of reversible error, taken together, their cumulative impact so prejudiced him as to require reversal of his conviction. See United States v. Diharce-Estrada, 526 F.2d 637 (5th Cir.1976). We find, with the exception of Kimbrough‘s multiplicitous argument, Kimbrough‘s arguments to be without merit. Kimbrough‘s current argument merely restates arguments we have already rejected and completely fails to specify how the cumulative effects of these events prejudiced him. We therefore reject this argument.
CONCLUSION
We affirm the judgment of conviction regarding Counts One and Two. We reverse as to Counts Three and Four and remand for the trial court to vacate Kimbrough‘s conviction on either of those counts and to resentence Kimbrough if the trial court chooses to do so. AFFIRMED IN PART AND REVERSED IN PART.
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part:
Although I concur in most of the opinion of the Court, I dissent from Court‘s treatment of the “Multiplicitous Counts Issue.” I am not convinced by the majority‘s statement that “[i]n this case, the statute‘s requirement that a defendant possess ‘three or more’ items would seem to indicate that the legislature did not intend for this statute to be used to charge multiple offenses.” I believe the majority is reading too much into the “three or more” language.
(B) knowingly possesses 3 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 in 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—
such visual depictions involve child pornography, violates
I therefore agree with the majority that the jurisdictional difference between the two sets of items in Counts 3 and 4 is insufficient by itself to support separate counts. The Government could not, for example, plead the same three items in separate counts merely because the same three had been “shipped” in interstate commerce and “produced” using materials which had been mailed or so shipped. The key, rather, is whether the items are in fact distinct and different items, regardless of whether they were “mailed,” “produced,” or “shipped.”1
The first two sections of the child pornography statute and the mail fraud statute speak of “any visual depiction” and “any scheme or artifice” (or “any counterfeit or spurious coin“) respectively. “Any” is synonymous with “one or more.” And we have held that a prosecutor has discretion to bring a single count or several counts where there is more than one item. Why should we read the phrase “three or more” in a more restrictive manner? Under the majority‘s interpretation of the statute, a prosecutor could only charge a defendant with one count under
It is not obvious how Congress could have written this provision to make it clearer that multiple counts were permitted. It would have been confusing to omit the “or more” language from the “three” because this would seem to suggest that the possession of four or more items would not be a violation. The phrase “at least three” does not say anything different from “three or more.” Nor do I believe that Congress‘s meaning would have been much clearer if they had stated “any three or more,” even though this would have more closely paralleled the preceding provisions.5
Therefore, it is more reasonable to assume that Congress simply wanted to heighten the evidentiary burden for convictions based on the mere possession of child pornography by requiring the Government to prove at least three items, but that Congress did not intend to eliminate the prosecutor‘s discretion to bring additional counts where there were more than three items, as long as each count is supported by three different and distinct items. The “or more” language affirms the prosecutorial discretion rather than removes it, by allowing the prosecutor to charge nine different items, for example, as one count or as three.6 Accordingly, I do not believe that the “three or more” language indicates that Congress intended to eliminate the prosecutor‘s discretion to bring one or several counts under this particular provision of the statute. Counts 3 and 4 should be held sufficient not because they assert different jurisdictional grounds, but because they are supported by at least three separate and distinct items. I would therefore affirm as to both counts.