[PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                             No. 11-11665                 JUNE 18, 2012
                       ________________________            JOHN LEY
                                                            CLERK
                D.C. Docket No. 1:09-cr-00127-JRH-WLB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MORGAN CHASE WOODS,

                                                         Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                              (June 18, 2012)

Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      Defendant Morgan Chase Woods appeals his convictions on one count of

receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2), and two

counts of possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). After review and oral argument, we affirm.

                              I. BACKGROUND

      Defendant Morgan Chase Woods was a Navy serviceman working as an

Arabic linguist and stationed at Fort Gordon, Georgia. In early 2008, his ex-wife

discovered child pornography on a Hewlett-Packard (“H-P”) computer that had

belonged to Woods before she took the computer and moved out of their home. In

February 2008, Woods’s ex-wife turned the H-P computer over to the Naval

Criminal Investigative Service (“NCIS”). Forensic investigators discovered

images of known child pornography on the computer.

A. May 12, 2009 Interview

      On May 12, 2009, NCIS Special Agent Mary Beth Eversman, FBI Agent

Brian Ozden and National Security Agency Special Agent Steve Cutcliff

interviewed Woods. The interview took place at Woods’s Fort Gordon workplace

during his working hours. It began when Woods’s chief escorted him to a private

office where the agents had gathered. After Woods’s chief left, the agents

displayed their credentials and told Woods that they wanted to speak to him

                                        2
because his email address had been associated with a child pornography website.1

The agents did not intend to take Woods into custody at this time; the agents did

not handcuff Woods, and they did not tell Woods that he was under arrest. The

agents were not armed. Agent Eversman later testified that Woods was free to

leave or to refuse to speak to them. Woods gave no indication that he did not want

to speak with the agents.

      Before questioning Woods, the agents gave Woods a form entitled “Military

Suspect’s Acknowledgment and Waiver of Rights.” Agent Eversman later

testified that pursuant to the Uniform Code of Military Justice, the military must

provide this waiver form to every military suspect in advance of interviewing the

suspect about allegations against him, even if the suspect is not in custody. The

waiver form, which Agent Eversman read aloud to Woods, stated:

      I . . . Morgan Chase Woods . . . have been advised by Special Agent(s)
      Mary Beth Eversman and Brian Ozden that I am suspected of receipt
      and/or transfer of child pornography.

      I have also been advised that:
      (1) I have the right to remain silent and make no statement at all;
      (2) Any statement I do make can be used against me in a trial by court-
      martial or other judicial or administrative proceeding;
      (3) I have the right to consult with a lawyer prior to any questioning.
      This lawyer may be a civilian lawyer retained by me at no cost to the
      United States, a military lawyer appointed to act as my counsel at no


      1
          The agents gave Woods this false reason to protect Woods’s ex-wife.

                                                3
      cost to me, or both;
      (4) I have the right to have my retained civilian lawyer and/or appointed
      military lawyer present during this interview; and
      (5) I may terminate this interview at any time, for any reason.

      I understand my rights as related to me and as set forth above. With that
      understanding, I have decided that I do not desire to remain silent,
      consult with a retained or appointed lawyer, or have a lawyer present at
      this time. I make this decision freely and voluntarily. No threats or
      promises have been made to me.

      After reading the form, Agent Eversman asked Woods if he had any

questions. Woods had no questions. Agent Eversman then asked Woods to

indicate that he understood his rights by initialing next to each numbered

paragraph on the form. Woods initialed each of the numbered paragraphs on the

waiver form. In addition, both Woods and Agent Eversman signed the bottom of

the waiver form. Then, Agent Eversman asked Woods to read the last paragraph

of the form and asked Woods whether he would be willing to talk with her.

Woods said yes. Woods never asked for a lawyer before or during the interview.

      The agents did not tell Woods that he would not be prosecuted if he

cooperated. Agent Ozden testified that the agents made no threats, inducements or

promises. Woods admitted that the agents made no promises to him at the time the

agents advised Woods of his rights. However, Woods later testified that he was

“flustered” at the time he signed the waiver form.


                                         4
       After signing the waiver form, Woods told the agents that he had viewed

child pornography on his desktop computer at his current home but had received

the child pornography inadvertently. Woods told the agents that he and his now

ex-wife had used a different computer at their former home.2 The interview lasted

approximately 30 minutes.

B. Search of Woods’s Home and Computer

       During the May 12, 2009 interview, the agents asked for Woods’s consent

to search his home computer. Woods agreed and signed a consent form entitled

“Permissive Authorization for Search and Seizure.” That consent form authorized

Agents Eversman and Ozden to search Woods’s residence “and any computers

and/or electronic storage media located within [Woods’s] residence.” The consent

form further authorized the NCIS “to conduct forensic reviews . . . of all electronic

storage media and data files, to include text and graphical image files, contained

on the electronic storage media.”

       After signing the consent form, Woods drove his car to his home and let the

agents follow in a separate vehicle. Woods allowed Agent Ozden to access his

home computer, and Ozden found images of child pornography. Agent Ozden


       2
         The computer Woods and his ex-wife used refers to the H-P computer Woods’s ex-wife
turned over to the NCIS. This was a different computer from the one Woods had at his home at
the time of the interview.

                                             5
then asked Woods what Woods thought Ozden had found on the computer.

Woods stated that he thought Agent Ozden had found child pornography. The

agents told Woods that they would like to take the computer for further forensic

examination. Woods agreed and signed another consent form. Agent Eversman

then brought Woods’s home computer to the NCIS evidence facility, where it was

shipped to the Defense Computer Forensic Lab (“DCFL”) for forensic analysis.

C. Forensic Examination of Woods’s Computers

       DCFL examiners found numerous images of child pornography and one

video of child pornography on the home computer Woods turned over to Agents

Eversman and Ozden. Hundreds of these images matched images of known child

pornography catalogued in the database maintained by the National Center for

Missing and Exploited Children (“NCMEC”). Agent Eversman selected several of

the images that matched images in the NCMEC database for in-depth analysis.

Through in-depth analysis, NCIS investigators attempt to determine images’

names3 and origins, when the images were saved to a computer, and whether the

images were copied or transferred to another computer.

       DCFL performed an identical analysis on the H-P computer that Woods’s



       3
        Particular images of child pornography in wide circulation are often identified by name.
For example, Woods was found in possession of a video known to be part of the “Vickie” series.

                                               6
ex-wife turned over to NCIS. Forty-one of the images and one video discovered

on the H-P computer matched images of known child pornography in the NCMEC

database. From these matching images, an NCIS agent selected six images for in-

depth analysis.

      The in-depth analyses of the images retrieved from the two computers

showed that the H-P user downloaded images of child pornography onto the H-P

computer at various times and saved those images in obscure folders on the H-P

computer. The H-P user then copied all of these images to Woods’s new home

computer in June 2007 and attempted to delete the images from the H-P computer

around or after December 2007. The filenames of at least some of the images

recovered from the two computers included obvious references to the depiction of

pre-pubescent victims.4

D. July 16, 2009 Interview and Written Confession

      Agent Eversman and NCIS Special Agent Noah Williams interviewed

Woods for a second time on July 16, 2009. This interview took place at the

Army’s Criminal Investigation Division office at Fort Gordon.



      4
         For example, names of child pornography files found on Woods’s computers and
introduced at trial included, in relevant part,
“LittlePreteenBoys8YOplus7YOKissingNakedInShower-Pedo . . .” (Exhibit 10-C); and “Vickie-
pedophilia13anos” (Exhibit 9-E).

                                            7
      Before the interview, Agent Eversman again read the “Military Suspect’s

Acknowledgment and Waiver of Rights” form to Woods. The waiver form

acknowledged that the agents advised Woods that he was suspected of “receipt

and/or transfer of child pornography.” After agreeing to waive his rights, Woods

signed the form and initialed each paragraph of the form. The waiver form was

identical to the one Woods signed on May 12, 2009. Woods did not ask any

questions about the waiver and never asked for a lawyer. The agents did not tell

Woods that he was under arrest before the interview and did not restrain Woods.

The interview lasted approximately two hours. According to Agent Eversman, the

tone of the interview was professional and non-confrontational.

      After the interview, Agent Eversman told Woods that she needed to

document their discussion, and invited Woods to help her prepare a written

statement to ensure its accuracy. Woods agreed, and Agent Eversman typed the

statement on a laptop computer as Woods sat beside her. Woods could see what

Agent Eversman was typing, and at times Woods provided input with respect to

the substance and language of the statement. Woods then edited a printed copy of

the four-page statement. The printed statement shows that Woods struck and

replaced certain words and added phrases to the statement. Woods initialed beside

each paragraph and signed the bottom. In the statement, Woods acknowledged

                                        8
making the statement “of [his] own free will and without any threats made to [him]

or promises extended.”

       Woods’s statement affirmed that he had searched for and downloaded child

pornography and estimated that he had “a couple hundred images of nude children

on [his] computer, and these children were either posed in a sexually provocative

manner or engaged in sexual acts.” Woods stated that he used the child

pornography “for both reference, and [his] sexual arousal.”

       Woods’s statement also acknowledged “several incidents” of his rubbing his

sleeping niece’s “legs, buttocks, and vagina.” Woods was 16 to 17 years old at the

time of these incidents.5 Woods stated that he had not engaged in similar activity

since that time because he had concluded that he had only “envious admiration as

opposed to a direct desire for such interaction with minors.”

E. Indictment

       In August 2009, a three-count indictment charged Woods with one count of

receiving child pornography and two counts of possessing child pornography.

Specifically, Count 1, the receiving count, charged Woods with “knowingly”

receiving or attempting to receive at least ten electronic images containing child



       5
         The statement does not indicate how old Woods’s niece was at the time of these
incidents.

                                               9
pornography between November 2006 and May 12, 2009, in violation of 18

U.S.C. § 2252A(a)(2). Counts 2 and 3, the possession counts, charged Woods,

respectively, with “knowingly” possessing more than ten electronic images

containing child pornography on his home computer, between on or about June 24,

2007 and May 12, 2009, in violation of 18 U.S.C. § 2252A(a)(5)(B); and

“knowingly” possessing more than ten electronic images containing child

pornography on his H-P computer between June 2005 and December 2007, in

violation of 18 U.S.C. § 2252A(a)(5)(B). Each count of the indictment defined

child pornography as depictions of “individual[s] who had not attained the age of

eighteen, engaged in sexually explicit conduct.” In February 2010, the

government provided Woods with a bill of particulars describing in detail the

specific, separate images it would use to prove each count of the indictment.

F. Motion to Suppress

      Before trial, Woods moved to dismiss the indictment on grounds that the

child pornography statutes under which he was charged were vague and

overbroad. The district court denied Woods’s motion.

      Woods also moved to suppress his statements to federal agents during the

May 12, 2009 and July 16, 2009 interviews on grounds that (1) the agents wrongly

advised Woods that he was entitled to the presence of a civilian lawyer only if he

                                        10
could afford one, and (2) Woods did not freely and voluntarily waive his Fifth

Amendment rights to counsel and to remain silent.

      The magistrate judge held an evidentiary hearing on Woods’s motion to

suppress. At the hearing, Agent Eversman and Agent Ozden testified regarding

the circumstances of the May 12, 2009 and the July 16, 2009 interviews with

Woods.

      Woods testified that he graduated high school and became an Arabic

linguist after 18 months of military language training. Woods recalled that on

May 12, 2009, his supervisor told him that he wanted to take Woods to a meeting

and led Woods to an office in the secure facility where Woods worked. When he

arrived at the office, Agents Eversman, Ozden and Cutcliff said they wanted to ask

Woods a few questions. Woods stated at the suppression hearing that he did not

feel that he was free to leave the meeting. Woods testified that Agent Eversman

read the rights waiver aloud while he followed along, and that he understood the

waiver form to mean that he would be allowed a civilian lawyer only if he could

afford one, which he could not. Woods conceded that Agent Eversman told him to

initial only the parts of the waiver form he understood and that Woods initialed

each numbered paragraph, including those advising of his right to silence and the

presence of a lawyer.

                                        11
      As to the July 16, 2009 interview, Woods testified that he did not feel free

to leave because (1) he was brought to the interview in a car, (2) had no

transportation of his own, and (3) the interview was “accusational” in nature.

Woods stated that Agent Eversman again read the rights waiver aloud while he

followed along. Woods claimed again that he understood the waiver form to mean

that he would be allowed a civilian lawyer only if he could afford one, which he

could not. Woods did not dispute that he signed the second waiver form, but

claimed that he was “very flustered” at the time and “wasn’t paying nearly as good

of attention as [he] should have been when [he] was signing.” Woods also

claimed that he was “flustered” at the time he made notes and revisions to the

written statement Agent Eversman typed with Woods’s help after the July 16

interview.

      As to both the May 12, 2009 and the July 16, 2009 interviews, Woods stated

that he never asked the agents about his rights at any time and that the agents made

no promises to him. Importantly, Woods never stated at the suppression hearing

that he did not know he had the right to have a military lawyer present during the

interviews on May 12, 2009 or July 16, 2009, or that he did not understand the

waiver forms he signed before each interview.

      In a lengthy Report and Recommendation (“the Report”), the magistrate

                                         12
judge recommended that the district court deny Woods’s motion to suppress. The

magistrate judge explained that, under Miranda v. Arizona, 

, 

(1966), Woods was entitled to the presence of “a” lawyer during questioning,

not “any particular ‘type’ of attorney.” Accordingly, the waiver form’s warnings

that Woods had the right to a military lawyer at no cost to him and a civilian

lawyer at no cost to the United States were consistent with Miranda and accurately

stated Woods’s Fifth Amendment rights.6 The magistrate judge explained: “That

the appointed lawyer would have been a military lawyer rather than a civilian

lawyer is of no consequence because Woods was offered ‘an’ appointed lawyer to

protect his Fifth Amendment rights.” The magistrate judge concluded that

Woods’s custodial status at the two interviews was irrelevant because the

warnings provided to Woods satisfied Miranda.

       Next, the magistrate judge found that Woods voluntarily, knowingly, and

intelligently made statements after being advised of his Fifth Amendment rights.

The magistrate judge noted that (1) Woods’s interactions with agents took place at

“the familiar locations of Woods’s place of employment and at his residence”; (2)


       6
          The magistrate judge noted that Woods’s Sixth Amendment right to counsel was not at
issue because formal judicial proceedings had not been instituted against Woods at the time of
either the May 12, 2009 or the July 16, 2009 interviews. See United States v. Hidalgo, 

, 1569 (11th Cir. 1993) (explaining that the Sixth Amendment right to counsel attaches only
after adversarial judicial proceedings are initiated against a defendant).

                                              13
agents promptly informed Woods of his rights before both interviews; (3) Woods’s

rights were explained to him orally and in writing; (4) Woods testified that he

understood those rights as they were explained to him; (5) Woods conceded that

the agents made no promises to him; (6) Woods cooperated with agents

throughout their investigation; and (7) the May 12, 2009 interview lasted only 30

minutes, and the July 16, 2009 interview lasted only two hours. These

circumstances convinced the magistrate judge that Woods “waived his rights with

the requisite level of comprehension.”

      The district court adopted the magistrate judge’s Report and denied

Woods’s motion to suppress.

G. Trial and Conviction

      At trial, Woods argued that (1) the government’s forensic recovery of data

from the H-P computer and Woods’s home computer was flawed; (2) Woods’s ex-

wife had access to the H-P computer long after Woods had allegedly downloaded

child pornography to that computer; and (3) the government failed to account for

the possibility that Woods’s roommates had downloaded the child pornography to

Woods’s home computer.

      During the trial, Woods moved for a mistrial due to, inter alia, the

government’s references to Woods’s alleged sexual molestation of his niece. The

                                         14
district court denied Woods’s motion for a mistrial.

       On October 6, 2010, a jury convicted Woods on all three counts. The

district court sentenced Woods to 135 months’ imprisonment as to Count 1, and

120 months’ imprisonment as to each of Counts 2 and 3, all to be served

concurrently.

       Woods appeals his convictions on various grounds.

                                     II. DISCUSSION

A. Suppression of Woods’s Statements

       Woods argues that his statements during the May 12, 2009 and July 16,

2009 interviews should have been suppressed because the waiver form, which

Agent Eversman read and Woods signed, was “confusing, misleading and

constitutionally deficient.” Specifically, Woods claims that the waiver form,

instead of simply stating that he had the right to have an attorney present during

questioning, drew a confusing distinction between a retained civilian attorney and

an appointed military attorney. Further, Woods argues that the waiver form’s

distinction was incorrect because if Woods faced civilian charges, he would be

entitled to an appointed civilian attorney if he could not afford one.7


       7
         “[W]here there is no factual dispute as to whether Miranda warnings were given, what
questions were asked and what answers given, we review the district court’s denial of the motion
to suppress de novo.” United States v. Kerr, 

, 241 (11th Cir. 1997).

                                               15
      The Fifth Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. Const. amend. V. Under

the Fifth Amendment, statements a defendant makes during a custodial

interrogation may not be used against him in court unless the government first

advises the defendant of his rights as set forth in Miranda v. Arizona, 

, 479, 

, 1630 (1966). United States v. Adams, 

, 1575

(11th Cir. 1993). These rights include the right to silence, the right to have an

attorney present during interrogation, and if the defendant is indigent, the right to

have a lawyer appointed for him. 

, 86 S. Ct at 1630. The

Miranda warnings need not be perfect; rather, the warnings need only “reasonably

convey[]” the defendant’s rights. Florida v. Powell, 

, 1205 (2010);

see California v. Prysock, 

, 359, 

, 2809 (1981)

(explaining the Supreme Court “has never indicated that the rigidity of Miranda

extends to the precise formulation of the warnings given a criminal defendant. . . .

Quite the contrary, Miranda itself indicated that no talismanic incantation was

required to satisfy its strictures.” (internal quotation marks omitted)).

Furthermore, Miranda applies only to situations of custodial interrogation. J.D.B.

v. North Carolina, 

, 2402 (2011).

      The district court never reached the issue of custody, and neither do we.

                                          16
Even assuming arguendo that Woods was in custody on both May 12 and July 16,

2009, and therefore was entitled to Miranda warnings, the waiver forms that Agent

Eversman read aloud and Woods signed and initialed reasonably and adequately

conveyed Woods’s Fifth Amendment rights under Miranda.

       As noted above, the waiver forms stated, in relevant part:

       (3) I have the right to consult with a lawyer prior to any questioning.
       This lawyer may be a civilian lawyer retained by me at no cost to the
       United States, a military lawyer appointed to act as my counsel at no
       cost to me, or both;
       (4) I have the right to have my retained civilian lawyer and/or appointed
       military lawyer present during this interview . . . .

These warnings expressly apprised Woods of his right to have a lawyer appointed

at no cost to him, to consult that lawyer before questioning, and to have the lawyer

present during questioning. These statements are consistent with Miranda, which

protects a person’s right to “a” lawyer or “an” attorney, but not a lawyer or

attorney of any particular type. See, e.g., 

, 

, 1626. Woods cites no case suggesting that Miranda requires more.

Although Woods was entitled to a lawyer before and during questioning, he was

not entitled to a particular kind of lawyer, whether military or civilian.8

       8
          As the magistrate judge correctly observed, Woods’s Sixth Amendment right to counsel
had not yet attached because formal judicial proceedings had not been instituted against Woods
at the time of either the May 12, 2009 or the July 16, 2009 interviews. See United States v.
Hidalgo, 

, 1569 (11th Cir. 1993). Accordingly, we need not discuss whether Woods
would have been entitled to the appointment of a particular type of lawyer after he was charged

                                              17
       Further, the waiver forms’ statement—that his lawyer may be a civilian

lawyer retained by him “at no cost to the United States”—did not make the

warnings “confusing” or “misleading.” The forms made it clear that before any

questioning took place, Woods could retain his own lawyer or a military lawyer

would be provided at no cost to him. See 

(holding

that warnings “reasonably conveyed” defendant’s right to have an attorney present

at all times). In sum, the language of the waiver forms reasonably, clearly and

accurately conveyed Woods’s Fifth Amendment rights under Miranda, and the

waiver forms’ qualification of Woods’s entitlement to a civilian lawyer does not

invalidate the otherwise adequate statements of Woods’s rights.

B. Other Issues Regarding Woods’s Statements

       We also reject Woods’s claim that the district court abused its discretion by

admitting Woods’s statements at trial without first requiring the government to

introduce evidence that Woods provided the statements voluntarily.9 As noted

above, the magistrate judge held a pretrial hearing on Woods’s motion to suppress



by civilian authorities. Rather, in this case we address only the Fifth Amendment and Miranda’s
rule designed to preserve Woods’s Fifth Amendment right against self-incrimination.
       9
         Woods’s brief does not clarify whether this claim refers to his written statement, his oral
statements at the May 12, 2009 and July 16, 2009 interviews, or both. We presume Woods
appeals the admission of both his written and oral statements.


                                                18
his statements at the May 12, 2009 and July 16, 2009 interviews. In the thorough

Report, the magistrate judge found that Woods knowingly and voluntarily waived

his Miranda rights. The district court adopted that Report and denied Woods’s

motion to suppress. Woods cites no authority holding that the government was

required again to prove the voluntariness of Woods’s statements before the district

court admitted Woods’s statements in evidence. The jury is not required to make

an independent finding on whether a defendant’s confession was voluntary. See

United States v. Nash, 

, 756–57 (11th Cir. 1990).

       In any event, the government provided ample evidence at trial that Woods

made these statements voluntarily in the form of witness testimony describing the

circumstances of the May 12, 2009 and July 16, 2009 interviews, the contents of

the waiver forms Woods signed, and Woods’s participation in the drafting of his

statement after the July 16 interview.

C. Vagueness and Overbreadth of 18 U.S.C. § 2252A(a)(2) and (a)(5)(B)

       Woods next claims that the child pornography statutes here are

unconstitutionally vague and overbroad.10 A statute is void for vagueness if it



       10
         This Court reviews de novo a district court’s determination that a statute is not
unconstitutionally vague or overbroad. United States v. Waymer, 

, 568 (11th Cir.
1995).


                                              19
“fails to provide a person of ordinary intelligence fair notice of what is prohibited,

or is so standardless that it authorizes or encourages seriously discriminatory

enforcement.” United States v. Williams, 

, 304, 

,

1845 (2008); accord United States v. Wayerski, 

, 1347 (11th Cir.

2010). A statute is facially overbroad if it prohibits a substantial amount of

protected speech “relative to the statute’s plainly legitimate sweep.” 

, 128 S. Ct. at 1838.

       We begin with the text of the two relevant statutes. As to receipt of child

pornography, 18 U.S.C. § 2252A(a)(2) makes it a crime for any person to:

       knowingly receive[] or distribute[]–
            (A) any child pornography that has been mailed, or using any
            means or facility of interstate or foreign commerce shipped or
            transported in or affecting interstate or foreign commerce by any
            means, including by computer; or
            (B) any material that contains child pornography that has been
            mailed, or using any means or facility of interstate or foreign
            commerce shipped or transported in or affecting interstate or
            foreign commerce by any means, including by computer . . . .

As to possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B) makes it a

crime for any person to:

       knowingly possess[]11 any book, magazine, periodical, film, videotape,


       11
          In October 2008, Congress added “or knowingly access[] with intent to view” to the
statute. Pub. L. No. 110-358, § 203(b), 122 Stat. 4001 (2008) (emphasis added). The indictment


                                              20
       computer disk, or any other material that contains an image of child
       pornography that has been mailed, or shipped or transported using any
       means or facility of interstate or foreign commerce . . . including by
       computer . . . .

       Woods argues that these receipt and possession statutes are

unconstitutionally vague because the statutory language is unclear whether a

person who merely views child pornographic images on his computer—versus a

person who actually downloads copies of those images to a hard-drive—has

“knowingly receive[d]” or “knowingly possesse[d]” those images.

       Our recent decision in United States v. Pruitt, 

(11th Cir.), cert.

denied, 

(2011), about the receipt statute, sheds light on this issue.

In Pruitt, the defendant challenged the sufficiency of the evidence of his

conviction for receipt of child pornography under § 2252A(a)(2)(A) because the

evidence showed he had viewed child pornography on his work computer but had

not downloaded the offending images to the computer’s hard drive. 

. We affirmed the defendant’s receipt conviction because a person

“knowingly receives” something when he “knowingly accept[s]” or “take[s]

possession or delivery of” that thing or “take[s] in [that thing] through the mind or

senses.” 

quotation marks omitted). Accordingly, Pruitt held


here did not charge Woods with this new, alternative prong of the statute.


                                               21
that “[u]nder [§ 2252A(a)(2)’s] ‘knowingly receives’ element, an intentional

viewer of child-pornography images sent to his computer may be convicted

whether or not, for example, he acts to save the images to a hard drive . . . .” 

a vagueness case. But Pruitt’s construction of § 2252A(a)(2)

shows why that receipt statute is not vague on the basis argued by Woods.12

Pruitt’s holding flowed from the “ordinary meaning” of the words “knowingly”

and “receive.” 

out, those words clearly convey that a person

who “intentionally views, acquires, or accepts child pornography on a computer

from an outside source” violates § 2252A(a)(2)(A). 

the statute’s

plain language thus shows why the receipt statute provides “a person of ordinary

intelligence fair notice of what is prohibited” and does not authorize or encourage

“seriously discriminatory enforcement.” 

, 128 S. Ct. at

1845.

        Similar reasoning applies to the possession statute, § 2252A(a)(5)(B). First,

we explain why the possession statute, like the receipt statute, applies to a person

who knowingly views child pornography on his computer, but does not download

        12
          As Woods notes, Pruitt was decided after Woods engaged in the conduct that led to his
conviction. Accordingly, Pruitt itself could not have put Woods on notice that merely viewing
child pornography on a computer, versus downloading and saving child pornography to the hard
drive, was conduct prohibited by § 2252A(a)(2)(A). Nonetheless, Pruitt’s construction of the
ordinary terms used in § 2252A(a)(2)(A) shows why the statute is not vague.


                                              22
or save that material to a hard drive. To do so, we discuss United States v. Bobb,

, 1373 (11th Cir. 2009), in which this Court already concluded that

“receipt” necessarily proves “possession,” and that therefore the possession crime

in § 2252A(a)(5)(B) is a lesser included offense of the receipt crime in

§ 2252A(a)(2)(B).13

       In Bobb, the defendant was convicted of receiving child pornography, in

violation of § 2252A(a)(2)(B), and possessing child pornography, in violation of

§ 2252A(a)(5)(B). 

. The defendant claimed that his

convictions violated the Double Jeopardy Clause because the receipt and

possession statutes criminalized the same conduct. 

Court

agreed that “these provisions, indeed, proscribe the same conduct” because “by

proving that a person ‘knowingly receives’ child pornography, the Government


       13
          We note that in Bobb, the defendant was convicted of receipt of child pornography
under § 2252A(a)(2)(B), while this case involves receipt under the adjacent subsection,
§ 2252A(a)(2)(A). However, these statutes proscribe virtually the same conduct. Section
2252A(a)(2) makes it a crime to:
        knowingly receive[] or distribute[]—
        (A) any child pornography . . . ; or
        (B) any material that contains child pornography . . . .
Bobb’s reasoning, which relied on the relationship between the words “receive” and “possess,” is
applicable to receipt under both subsections (A) and (B). Indeed, the defendant in Bobb argued
that the possession statute was a lesser included offense of both subsections (A) and (B). See

(explaining that defendant argued “that the offenses described in 18
U.S.C. § 2252A(a)(2) (prohibiting receipt) comprise a subset of offenses described in 18 U.S.C.
§ 2252A(a)(5)(B) (prohibiting possession)” (emphasis added)).


                                              23
necessarily proves that the person ‘knowingly possesses’ child pornography.” 

nonetheless affirmed the defendant’s receipt and possession

convictions in Bobb because there the defendant’s “convictions and sentences

were based on two distinct offenses, occurring on two different dates, and

proscribed by two different statutes.” 

our precedents together, we see that (1) Pruitt held that a person

who “knowingly” views child pornography on a computer, but does not download

it, “receives” child pornography; and (2) Bobb held that “receipt” necessarily

entails “possession.” Thus, these precedents, taken together, show that a person

who intentionally views, but does not download, child pornography necessarily

“possesses” child pornography within the meaning of § 2252A(a)(5)(B). The

issue thus becomes whether § 2252A(a)(5)(B) provides “a person of ordinary

intelligence fair notice” that it prohibits such conduct. 

,

128 S. Ct. at 1845.

      As with the receipt statute, the ordinary meaning of the terms in the

possession statute show why it is not unconstitutionally vague. “‘Possession’ is

‘the act or condition of having in or taking into one’s control or holding at one’s

disposal.’” United States v. Frank, 

, 1234 (11th Cir. 2010) (quoting




                                         24
Webster’s Third New International Dictionary 1770 (Philip Babcock Gove et al.

eds., 1981)). One who “knowingly” views images of child pornography on a

computer, even without downloading or saving those images to the computer’s

hard drive, takes those images into his control and has those images at his

disposal. He may save those images to a different location on the computer,

transmit the images over the internet, or show those images to others. Like the

receipt statute, the terms of the possession statute thus provide “a person of

ordinary intelligence fair notice of what is prohibited” and do not authorize or

encourage “seriously discriminatory enforcement.” 

,

128 S. Ct. at 1845. A statute is not unconstitutionally vague for failing to describe

explicitly the range of ways in which the statute can be violated. See United

States v. Martin, 

, 1409 (11th Cir. 1984) (“Congress may use a term

that conveys the type of conduct regulated rather than enumerate all the specific

instances within the legislation.”).

      Woods’s vagueness argument also fails because Woods himself knowingly

saved child pornography to the hard drives of his two computers, and “one to

whose conduct a statute clearly applies may not successfully challenge it . . . for

vagueness.” Bama Tomato Co. v. U.S. Dep’t of Agric., 

, 1547 (11th




                                          25
Cir. 1997) (internal quotation marks omitted); see Catron v. City of St. Petersburg,

, 1271 (11th Cir. 2011) (stating that party whose own conduct is

clearly proscribed by statute cannot successfully challenge statute for vagueness

either facially or as applied); United States v. Wetherald, 

, 1326

(11th Cir. 2011) (explaining that when a vagueness challenge does not involve the

First Amendment, the analysis must be based on the facts of the case), cert. denied,

(2011), and 

(2012), and 

(2012).

Woods admitted that he downloaded child pornography to both his H-P computer

and his home desktop computer. Forensic analysis confirmed that child

pornography files were saved to the H-P computer and later transferred and saved

to Woods’s home computer. Woods’s ex-wife also testified that she discovered

sexually explicit images of children on the H-P computer she shared with Woods.

Woods makes no claim that he merely viewed child pornographic images without

downloading them. Nor does Woods claim that his downloading and viewing of

child pornography are constitutionally protected conduct. Because the language of

§ 2252A(a)(2) and (a)(5)(B) is not vague as applied to Woods’s conduct, Woods’s

facial and as-applied vagueness challenges fail. See 

.

      We also conclude that the child pornography receipt and possession statutes




                                         26
are not overbroad. As noted above, a statute is overly broad only if it prohibits a

substantial amount of protected speech in relation to the statute’s legitimate

sweep. 

, 128 S. Ct. at 1838. The statutes Woods

challenges prohibit only the knowing receipt or possession of “child

pornography.” 18 U.S.C. § 2252A(a)(2), (a)(5)(B). Child pornography is not

speech protected by the First Amendment. New York v. Ferber, 

,

758, 765, 

, 3355, 3359 (1982); United States v. Miller, 

, 980 n.4 (11th Cir. 1985). Accordingly, the two statutes’ very terms restrict

their application to speech unprotected by the First Amendment.

      In criminalizing this unprotected conduct or speech, the statutes prohibit

little, if any, protected speech or conduct. The statutes criminalize only

“knowing” possession or receipt of child pornography, which eliminates the

possibility that an unwitting downloader of child pornography will trigger liability

under the statutes. Though Woods identifies some problematic hypothetical

applications of these statutes, Woods has not demonstrated that these applications

are substantial in relation to the statutes’ legitimate sweep. These statutes do not

offend the First Amendment in the vast majority of applications, and “[t]he mere

fact that one can conceive of some impermissible applications of a statute is not




                                          27
sufficient to render it susceptible to an overbreadth challenge.” 

S.

Ct. at 1844 (internal quotation marks omitted).

D. Multiplicitous Indictment

        Woods next claims that his indictment is multiplicitous. “An indictment is

multiplicitous if it charges a single offense in more than one count.” United States

v. Jones, 

, 1258 (11th Cir. 2010) (internal quotation marks omitted).

A multiplicitous indictment “violates double jeopardy principles by giving the jury

more than one opportunity to convict the defendant for the same offense.” 

is subject to the same standard as a double

jeopardy challenge. 

an indictment are not

multiplicitous if the charges differ by even a single element or alleged fact.14

United States v. Costa, 

, 926 (11th Cir. 1991).

             Woods’s argument relies on our decision in United States v. Bobb,

discussed above, holding the possession statute, 18 U.S.C. § 2252A(a)(5)(B), is a

lesser included offense of the receipt statute, § 

.

Woods argues that under Bobb, where an indictment charges both possession and

receipt of child pornography, “there must be allegations and proof of separate,


        14
             We review de novo a claim that an indictment is multiplicitous. 

.


                                                  28
distinct downloadings of pornography.”

      Woods’s claim wholly lacks merit, because, as in Bobb, each count of the

indictment alleges that Woods engaged in the charged conduct during a different

time period. Count 1 charges that Woods received or attempted to receive child

pornography between November 2006 and May 12, 2009, which corresponds to

the time between when Woods and his ex-wife moved to Georgia and when

Woods surrendered his home desktop computer to federal agents. Count 2 charges

that Woods possessed child pornography between June 24, 2007 and May 12,

2009, which corresponds to the time between when Woods copied the files from

the H-P computer to his home computer and when Woods surrendered his home

computer to federal agents. Count 3 charges that Woods possessed child

pornography between June 2005 and December 2007, which corresponds to the

time before Woods’s ex-wife moved out and took the H-P computer. See 

(holding that indictment charged two separate offenses in part

because charged offenses occurred on two different dates).

      Though these date ranges partially overlap, each range in each count has a

span of dates not covered by the time period in the other counts. And indeed, two

counts involve different computers. Nothing in the indictment indicated that the




                                         29
same images underlying the receipt count underlie the possession counts.

       In any event, the government’s bill of particulars confirmed there is no

multiplicity of the charges here. The bill of particulars, which the government

provided Woods in February 2010, described each of the images or videos the

government would rely on to prove each count of the indictment, and no single

downloaded image or video constituted the basis for multiple charges.15 See

United States v. Schmitz, 

, 1260 n.8 (11th Cir. 2011) (explaining

that a bill of particulars may cure notice problems caused by a vague term in an

indictment); United States v. Perkins, 

, 1526 (11th Cir. 1984)

(noting that a bill of particulars can cure an indictment’s omission of details

needed to help defendant prepare defense). Accordingly, each of the three counts

in the indictment rested on at least one fact or element different from the others,

and the indictment itself was not multiplicitous. See 

E. Admission of Testimony Mentioning Images in NCMEC Database

       Woods also raises evidentiary issues which first require some background

about what happened at trial.

       15
          Indeed, the government points out that Woods does not claim that the bill of particulars
included the same image as evidence of more than one count.
       16
         We also reject Woods’s claim that the trial evidence constructively amended and
unconstitutionally varied from Woods’s indictment.


                                                30
      In his opening argument, Woods’s counsel argued that Woods was the

victim of a “sloppy” police investigation. Specifically, Woods’s counsel argued to

the jury that (1) the government “made a conscious decision to try to prejudice you

against [Woods] over here by the selections [of images] that they made”; (2) the

government “decided to make [the images] just as bad as they could hoping that

would fire y’all up to just convict him because they’re just such nasty pictures”;

and (3) “[t]here are manipulations of the images as to the image descriptions, the

number and type.”

      Later, during its case in chief, the government asked Agent Eversman and

DCFL forensic examiner James Morris to describe how they recovered data from

Woods’s computers and how they decided which of the hundreds of images

recovered to submit for in-depth analysis. Agent Eversman and Morris testified

that they verified which of the files on Woods’s computers matched images and

videos in the NCMEC database and selected several of those matching files for in-

depth analysis. Morris testified that agents selected for in-depth analysis images

that matched NCMEC database images because the government did not have the

time or resources to perform an in-depth analysis on all of the images recovered

from Woods’s computers. Morris stated that DCFL lab policy is to perform in-




                                         31
depth analysis on no more than 25 images without additional authorization.

          Woods’s counsel objected multiple times to Agent Eversman’s and Morris’s

testimony on grounds that their suggesting Woods’s files matched those in the

NCMEC database (1) was unauthenticated evidence; (2) was inadmissible hearsay;

(3) denied Woods’s Sixth Amendment right to confront witnesses regarding this

evidence; and (4) was unfairly prejudicial. The district court overruled Woods’s

objections. On appeal, Woods raises each of these challenges. We review them in

turn.17

          Under Federal Rule of Evidence 901(a), an “item” of evidence is not

admissible at trial unless and until it is properly authenticated by evidence

“sufficient to support a finding that the item is what the proponent claims.” Fed.

R. Evid. 901(a). Here, Woods’s counsel did not object to the introduction of any

“item” of evidence. Rather, Woods’s counsel objected only to testimony that the

government’s ordinary forensic process showed that some of the images and

videos discovered on Woods’s computer matched those in the NCMEC database.

Accordingly, the authentication requirement, which applies only to “an item of


          17
           This Court reviews a district court’s evidentiary rulings for abuse of discretion. United
States v. McGarity, 

, 1232 (11th Cir. 2012). “If, however, the objection raises the
right to confront witnesses, we review it de novo.” United States v. Langford, 

,
1319 (11th Cir. 2011), cert. denied, 

(2012).


                                                 32
evidence,” is inapplicable, and the district court did not abuse its discretion by

overruling Woods’s objections on these grounds. 

that the district court did not abuse its discretion by

overruling Woods’s hearsay and Confrontation Clause objections. Relevant

evidence may be excluded if it is inadmissible hearsay. See Fed. R. Evid. 802.

Hearsay is an out-of-court statement made “to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c)(2).

       In explaining how the DCFL and NCIS recovered data from Woods’s

computers and decided which images to subject to in-depth analysis, Agent

Eversman and Morris testified that images found on Woods’s computers matched

images in the NCMEC database. Assuming without deciding that these matches

were out-of-court “statements” within the meaning of Federal Rule of Evidence

801(a),18 this testimony was not introduced to prove the truth of the matter

asserted, i.e., that the images found on Woods’s computer matched images of

known child pornography. See Fed. R. Evid. 801(c)(2). Rather, the testimony

explained how the government selected which images recovered from Woods’s



       18
          The Federal Rules of Evidence define a “statement” as “a person’s oral assertion,
written assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed. R. Evid.
801(a).


                                                33
computers to subject to in-depth analysis. This purpose was particularly evident

given Woods’s counsel’s attack on the integrity of the government’s forensic

techniques, especially Woods’s counsel’s claims to the jury that the government

selected images to use against Woods on the basis of those images’ inflammatory

effects.

       By eliciting testimony about the NCMEC matches, the government showed

that it selected images for in-depth analysis based on the likelihood that in-depth

analysis would reveal useful information about the images, rather than pursuant to

an illicit or improper motive.19 See United States v. Baker, 

, 1208

n.17 (11th Cir. 2005) (“Statements by out of court witnesses to law enforcement

officials may be admitted as non-hearsay if they are relevant to explain the course

of the officials’ subsequent investigative actions . . . .”). Accordingly, testimony

about the NCMEC database matches was not hearsay under Federal Rule of




       19
         The government’s closing argument confirms that Agent Eversman’s and Morris’s
testimony was not offered to prove the images in fact matched images in the NCMEC database,
but merely to explain the selection process for in-depth analysis. The government told the jury:

       I will note that there has been evidence in the case about references to NCMEC and
       its known database. The purpose of that was just to explain the forensic process. It’s
       really up to you to determine whether or not there are real children in these pictures,
       whether or not they were minors at the time that the images were taken, and whether
       or not they are sexually explicit in nature.


                                                34
Evidence 801(c).20

       Last, we reject Woods’s argument that this testimony was unfairly

prejudicial and should have been excluded. Under Rule 403, the district court may

exclude otherwise-admissible evidence “if its probative value is substantially

outweighed” by the danger, inter alia, of unfair prejudice to the defendant. Fed. R.

Evid. 403. The courts must employ Rule 403 “only sparingly since it permits the

trial court to exclude concededly probative evidence.” United States v. Smith, 

, 1295 (11th Cir. 2006).

       There is no question that testimony that files on Woods’s computer matched

those in the NCMEC database was relevant and probative of the government’s

forensic techniques and helped to show, contrary to Woods’s counsel’s assertions,

that the government did not select evidence pursuant to an improper motive. This

testimony was not substantially outweighed by the danger of unfair prejudice,

especially given the volume and nature of the evidence at trial showing that

Woods had downloaded child pornography. This evidence included (1) Woods’s

own written confession that he had downloaded hundreds of images of child


       20
         Because the admitted testimony was not hearsay, Woods’s Confrontation Clause
challenge also fails. See United States v. Jiminez, 

, 1286 (11th Cir. 2009) (“There
can be no doubt that the Confrontation clause prohibits only statements that constitute
impermissible hearsay.”).


                                               35
pornography; and (2) the testimony of both Woods’s ex-wife and forensic expert

Morris, who each testified that, based on their personal observations, the images

on Woods’s computers were child pornography; (3) Agent Ozden’s testimony that

the images he viewed on Woods’s home computer were child pornography; (4)

Woods’s statement to Agent Ozden that he thought Ozden had discovered child

pornography on Woods’s computer; (5) the nature of the images on Woods’s

computers, which depicted pre-pubescent minors that could not reasonably be

confused with adults; (6) the names of Woods’s computer files containing child

pornography, which included obvious references to the fact that the images

depicted children.21

      Further, at the close of the trial, the district court instructed the jury that the

jury was to decide whether the individuals depicted in the images were minors.

The district court’s jury instructions stated:

      As part of the Government’s case, evidence has been admitted, including
      images which the Government asserts depict actual minors. It is for you
      to determine, based upon all the evidence before you, whether actual
      minors are depicted in the images.

This instruction further emphasized that the jury itself was to determine whether

Woods’s images were child pornography. See United States v. Fortenberry, 971


      21
           See supra n. 4.


                                           

, 721 (11th Cir. 1992) (noting that limiting instructions minimize the

prejudicial effect of evidence).22

        In sum, the district court did not abuse its discretion by admitting Agent

Eversman’s and Morris’s testimony over Woods’s counsel’s objections.

F. Admission of Other Acts Evidence

        At trial, Woods objected to the admission into evidence of the portion of his

typed statement describing his molestation of his niece, which the district court

admitted under Federal Rule of Evidence 414. Woods also moved for a mistrial.

Woods now argues that this evidence was unfairly prejudicial and deprived him of

a fair trial.23

        Under Federal Rule of Evidence 414(a):

        In a criminal case in which the defendant is accused of an offense of
        child molestation, evidence of the defendant’s commission of another

        22
         We further note that Woods’s defense at trial was that the government could not show
that Woods, as opposed to Woods’s ex-wife or his roommates, received and possessed the
images and videos found on the two computers, not that the images and videos did not depict
actual minors.
        23
          We construe Woods’s presentation of this issue on appeal as an argument that the
relevant portion of Woods’s written statement should have been excluded under Federal Rule of
Evidence 403. To the extent Woods argues in his opening brief that Rule 414 is unconstitutional,
Woods has abandoned this issue by failing to develop any argument on it in his opening brief.
See United States v. Jernigan, 

, 1283 n.8 (11th Cir. 2003) (deeming an issue
abandoned when a defendant merely makes a passing reference to an alleged error in his brief).
         We review a district court’s evidentiary rulings and denial of a motion for a mistrial for
abuse of discretion. 

.


                                                37
       offense or offenses of child molestation is admissible, and may be
       considered for its bearing on any matter to which it is relevant.24

Rule 414 defines “offense of child molestation” as, among other things, a crime

involving “any conduct proscribed by chapter 110 of title 18, United States Code.”

Fed. R. Evid. 414(d)(2). Woods was charged under 18 U.S.C. § 2252A(a)(2)

(receipt of child pornography) and 18 U.S.C. § 2252A(a)(5)(B) (possession of

child pornography), both of which fall under chapter 110 of title 18. Accordingly,

admission of Woods’s statement about molesting his niece was proper under Rule

414 so long as this evidence satisfied the other Rules of Evidence, including Rule

403. See United States v. McGarity, 

, 1244 (11th Cir. 2012).

       As discussed above, under Rule 403, the district court may exclude

otherwise-admissible evidence if its probative value is substantially outweighed by

the danger of unfair prejudice to the defendant. Fed. R. Evid. 403. In McGarity,

we considered a nearly identical Rule 403 challenge to the admission of the

defendant’s written statement detailing “his prior fondling, touching, and

molestation of his two-year-old daughter some nine years 

          Rule 414 was amended in December 2011. However, even if that amendment were
retroactive, the amendment was stylistic only and does not change the outcome of our inquiry.
See Fed. R. Evid. 414 advisory committee’s note (“These changes are intended to be stylistic
only. There is no intent to change any result in any ruling on evidence admissibility.”). All
quotations of Rule 414 reflect the pre-amendment language.


                                               38
1243. In that case, we rejected defendant McGarity’s claim that the probative

value of this statement was substantially outweighed by the danger of unfair

prejudice, in part because McGarity’s statement showed that he was the person

who had trafficked in the child pornography admitted in evidence. 

nature of McGarity’s crime was intended to avoid detection.”). Similarly,

Woods argued at trial that the government could not prove that Woods—as

opposed to Woods’s ex-wife or Woods’s roommates—had received and possessed

the child pornography found on the two computers. Like McGarity’s statement,

Woods’s statement describing his molestation of his niece was probative of

Woods’s interest in child pornography and therefore made it more likely that

Woods, and not his ex-wife or roommates, was responsible for the child

pornography found on the two computers. The district court therefore did not

abuse its discretion by admitting the evidence under Rules 414 and 403 and by

denying Woods’s motion for a mistrial.

G. Prosecutor’s Closing Argument

       Woods next claims that the prosecutor’s closing argument constituted

prosecutorial misconduct and denied Woods a fair trial.25 “Reversal on the basis


       25
         This Court reviews de novo a claim of prosecutorial misconduct. United States v.
Eckhardt, 

, 947 (11th Cir. 2006).


                                              39
of prosecutorial misconduct requires that the misconduct be so pronounced and

persistent that it permeates the entire atmosphere of the trial.” United States v.

Crutchfield, 

, 1099 (11th Cir. 1994) (internal quotation marks

omitted). “For a claim of prosecutorial misconduct relating to the closing

argument to be successful, the argument must be improper and prejudicial to a

substantial right of the defendant.” United States v. Bailey, 

, 1400

(11th Cir. 1997). A defendant’s substantial rights are prejudiced if there is a

reasonable probability that, but for the improper remarks, the outcome of the trial

would have been different. United States v. Adams, 

, 1097 (11th Cir.

1996).

      Woods does not identify any particular improper statement the prosecutor

made during the closing argument. Rather, Woods claims only that the prosecutor

“fanned and inflamed the jury against him concerning such information about

which he was not charged.” Our review of the record shows no evidence of

prosecutorial misconduct. In her closing argument, the prosecutor merely restated

the elements of the offenses with which Woods was charged, outlined the

evidence against Woods, and connected the evidence to each element of the

offense. The prosecutor used no inflammatory language whatsoever and




                                          40
referenced no unadmitted evidence. Accordingly, Woods’s claim of prosecutorial

misconduct fails.26

                                   III. CONCLUSION

       After full record review and oral argument, we affirm Woods’s convictions

on all three counts.

       AFFIRMED.




       26
          Woods also claims that the district court erred (1) in refusing to give Woods’s
requested jury instructions; (2) in unduly limiting Woods’s counsel’s cross-examination of
government witnesses concerning the circumstances of Woods’s statements; and (3) in denying
his mistrial motion that was based on a government witness’s testimony about the victim of the
child molestation depicted in a video found on Woods’s computers. All of these claims lack
merit and do not warrant further discussion.



                                              41