Filed: Jul. 15, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4867 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FREDERICK MASON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:11-cr-00168-FL-1) Submitted: June 5, 2013 Decided: July 15, 2013 Before WILKINSON, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Pu
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4867 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FREDERICK MASON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:11-cr-00168-FL-1) Submitted: June 5, 2013 Decided: July 15, 2013 Before WILKINSON, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Pub..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4867
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDERICK MASON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cr-00168-FL-1)
Submitted: June 5, 2013 Decided: July 15, 2013
Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Raleigh, North
Carolina; James A. Martin, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal presents a challenge to a jury verdict finding
defendant, Frederick Mason, guilty on fourteen counts of
transportation, receipt, and possession of child pornography.
Mason was sentenced to concurrent terms of 480 and 240 months.
For the reasons stated below, we reject Mason’s contentions and
affirm his convictions and sentence.
I.
In 2010, Detective McLaughlin, a New Hampshire undercover
investigator, initiated a dialogue with Mason via an online chat
service. After an initial conversation, Mason transmitted
several pornographic files to McLaughlin. McLaughlin traced the
source of the files to Mason’s residence in North Carolina. He
then transferred the case to the North Carolina police, who
obtained a warrant to search Mason’s home.
Mason was present at his residence when the warrant was
executed. After voluntarily agreeing to speak with the officers
conducting the search, Mason admitted to downloading, storing,
and transmitting child pornography files. An extensive search of
Mason’s computer and the various storage devices located in
Mason’s home revealed approximately 10,000 child pornography
files.
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The government obtained an indictment charging Mason with
the transportation (Counts 1-3), receipt (Counts 4-13), and
possession (Count 14) of child pornography in violation of 18
U.S.C § 2252. After a jury verdict of guilty on all 14 counts,
Mason was sentenced to concurrent terms of 480 months for Counts
1-13 and 240 months for Count 14. This appeal followed.
II.
Two of the challenges raised by Mason arise from
typographical errors present in the indictment. Both of these
challenges are properly analyzed under variance doctrine. For
the following reasons, both are meritless.
A.
Mason’s primary variance argument is premised on an error
contained in the name of a computer file listed as evidence
under Count One. The file at issue is listed in the indictment
under the name “Chandler.CIMP1989.AVI;” the government’s proof
at trial, however, indicated that the correct file name for this
item is actually “Chandler.CIMG1989.AVI.”
Mason contends that the divergence between the indictment
and the government’s proof generated by this error constitutes a
“fatal variance.” A fatal variance occurs “when the indictment
is altered to change the elements of the offense charged, such
that the defendant is actually convicted of a crime other than
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that charged in the indictment.” United States v. Allmendinger,
706 F.3d 330, 339 (4th Cir. 2013) (internal quotation marks
omitted).
Not all variances, however, are fatal. “When the
government’s proof diverges to some degree from the indictment
but does not change the crime charged in the indictment, a mere
variance occurs.” Id. “A mere variance does not violate a
defendant's constitutional rights unless it prejudices the
defendant either by surprising him at trial and hindering the
preparation of his defense, or by exposing him to the danger of
a second prosecution for the same offense.” United States v.
Randall, 171 F.3d 195, 203 (4th Cir. 1999).
The divergence between the proof and indictment in this
case does not warrant reversal of Mason’s convictions. The
variance was non-fatal because the proof offered at trial by the
government did not alter the crime charged in the indictment.
Furthermore, the variance did not prejudice Mason in either of
the respects identified by Randall. Apart from Mason’s
conclusory assertions, there is no evidence that the error
surprised him at trial or hindered the preparation of his
defense in any way.
Furthermore, the error does not expose Mason to the threat
of a second prosecution for the same offense. The government
openly admitted the existence of the typographical error at
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trial and supplied the proper file name in testimony.
Consequently, “the record depicts the offenses in such unique
detail that [Mason] is protected from subsequent prosecutions
for the same crimes.” United States v. Quicksey, 525 F.2d 337,
341 (4th Cir. 1975).
B.
Mason’s second variance argument pertains to the
indictment’s specification of an incorrect date in Count Ten,
which charged Mason with receipt of child pornography on
December 7, 2010. Testimony by a government witness established
that the actual date on which this offense allegedly occurred
was December 7, 2009. Mason was in custody on the date specified
by the indictment; accordingly, he now argues that he could not
possibly have received illegal materials on that date.
Although Mason characterizes this issue as one of
insufficiency of the evidence, variance doctrine instead
provides the appropriate framework for analysis. Mason does not
contend that a conviction for receipt of child pornography on
December 7, 2009 (the date alleged at trial) would be factually
unsupportable; to the contrary, he merely argues that the
government’s evidence fails to establish that he received
prohibited materials on the (incorrect) date specified in the
indictment. Thus, Mason’s objection is fundamentally grounded in
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the divergence between the indictment and the proof presented at
trial.
A fatal variance claim in this instance fails for reasons
similar to those identified above. First, under Allmendinger,
706 F.3d at 339, the variance here is non-fatal because it does
not alter the elements of the crime charged in the indictment.
“Where a particular date is not a substantive element of the
crime charged, strict chronological specificity or accuracy is
not required.” United States v. Kimberlin, 18 F.3d 1156, 1159
(4th Cir. 1994) (internal quotation marks omitted).
Second, Mason’s claim also fails under the prejudice
standard articulated in Randall, 171 F.3d at 203. Mason does
not allege that the indictment’s specification of an incorrect
date caused unfair surprise or improperly hampered the
preparation of his defense; indeed, it appears that the error
was not even recognized until this appeal. See United States v.
Barsanti, 943 F.2d 428, 438-39 (4th Cir. 1991) (finding no
prejudice and thus no fatal variance where government’s proof
indicated that crime occurred on a date different than that
listed in the indictment). Furthermore, under Quicksey, 525 F.2d
at 341, the fact that the government identified the correct date
at trial effectively precludes any possibility of a second
prosecution for the same offense. We therefore reject Mason’s
6
assertion that the government committed a fatal variance at
trial.
III.
Mason’s second contention is that Counts 4-13 and Count 14
of the indictment were multiplicitous. This objection to the
indictment could and should have been raised before trial or, at
the latest, during the course of the trial. It therefore comes
before us on the well-recognized plain error standard, set forth
in United States v. Olano, 507 U.S. 725, 732 (1993).
Multiplicity “is the charging of a single offense in
several counts. The signal danger in multiplicitous indictments
is that the defendant may be given multiple sentences for the
same offense.” United States v. Burns, 990 F.2d 1426, 1438 (4th
Cir. 1993) (internal quotation marks and citations omitted). The
prohibition on multiplicity is not violated, however, when
multiple convictions are predicated on multiple discrete acts.
United States v. Benoit,
713 F.3d 1, 16 (10th Cir. 2013).
Counts 4-13 of the indictment charge Mason with receipt of
child pornography; Count 14 charges him with possession of child
pornography. Although each receipt charge identifies as a
predicate a particular pornographic file, the possession charge
includes merely a general reference to “computer hard drives and
computer media containing digital and computer images.” As a
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result of the indictment’s failure to identify a distinct file
as the basis of the possession charge, Mason contends that the
jury theoretically could have voted to convict for both
possession and receipt on the basis of identical pornographic
material. Insofar as possession in this context may be
considered a lesser-included offense of receipt, Mason argues
that conviction for the two offenses on the basis of the same
acts would violate the prohibition on multiplicity. *
Here, “the prosecutor's statements and the evidence at
trial” indicate that the possession and receipt charges were
predicated on distinct conduct. United States v. Halliday, 672
F.3d 462, 471 (7th Cir. 2012). As noted, Counts 4-13
collectively identify ten specific files that form the basis of
the receipt allegations. At trial, however, the government
presented evidence that Mason possessed approximately 10,000
pornographic images and videos. Moreover, the prosecutor
commented in his opening statement that the possession charge
was founded on Mason’s “entire collection.” The government’s
proof as to the possession count vastly exceeded the files
listed by name in the receipt portions of the indictment. See
*
Although our circuit has not formally decided whether
possession is a lesser-included offense, see United States v.
Brown, 701 F.3d 120, 125 n.6 (4th Cir. 2012), we need not do so
here because we find that the relevant counts in Mason’s
indictment were in fact based on distinct conduct.
8
United States v. Bobb, 577 F.3d 1366, 1375 (11th Cir. 2009)
(rejecting multiplicity claim in a similar case). Mason raised
no multiplicity objection to the government’s case at trial, and
his multiplicity argument therefore fails under the Olano
standard.
IV.
Mason next argues that the district court erred in
admitting documents and testimony under Federal Rule of Evidence
414(a), which provides that “[i]n a criminal case in which a
defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other child
molestation. The evidence may be considered on any matter to
which it is relevant.”
Under this rule, the district court permitted the
introduction of certified documents relating to Mason’s past
convictions for taking indecent liberties with children. The
culpable conduct, which involved the repeated sexual molestation
of two boys aged 9 and 11, occurred from 1996-97. In addition to
documentary evidence, the government was also permitted to
introduce testimony from an investigator identifying the age and
gender of the victims.
Mason does not contest that this evidence was facially
admissible under Rule 414. Evidence admitted under Rule 414,
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however, remains subject to the balancing test imposed by Rule
403, which requires that evidence “‘be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice’ to the defendant.” United States v. Kelly, 510 F.3d
433, 437 (4th Cir. 2007) (quoting Fed. R. Evid. 403). We review
a district court’s decision to admit a particular item of
evidence for abuse of discretion. United States v. Young,
248
F.3d 260, 266 (4th Cir. 2001).
We have previously determined that in applying Rule 403’s
balancing test to Rule 414 evidence, a court should consider
several factors, including: “(i) the similarity between the
previous offense and the charged crime, (ii) the temporal
proximity between the two crimes, (iii) the frequency of the
prior acts, (iv) the presence or absence of any intervening
acts, and (v) the reliability of the evidence of the past
offense.” Kelly, 510 F.3d at 437.
Under these factors, it is plain that no abuse of
discretion occurred here. Mason’s present and past convictions
were similar insofar as they both involved the exploitation of
children. Although the earlier convictions were imposed 12 years
prior to the instant indictment, that interval is still much
shorter than the 22 year intervening period deemed acceptable in
our Kelly decision. Id.
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Furthermore, the acts underlying the prior convictions were
frequent: Mason repeatedly molested his victims over the course
of several months. The evidence demonstrating this conduct was
also eminently reliable: the prosecution introduced both
certified documents and testimony from an investigator
personally involved in the earlier case. Mason’s evidentiary
objection therefore fails to establish an abuse of discretion on
the part of the trial court.
V.
Finally, Mason argues that the 480-month sentence imposed
by the district court is both procedurally and substantively
unreasonable. Sentencing decisions are reviewed deferentially on
appeal for abuse of discretion. United States v. Mendoza-
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). This inquiry
includes both a substantive and a procedural component. Gall v.
United States,
552 U.S. 38, 51 (2007).
A.
The procedural prong of the reasonableness inquiry
requires, as a threshold matter, that the sentencing court
correctly calculate the applicable Guidelines range. Gall, 552
U.S. at 49. The district judge must then give “both parties an
opportunity to argue for whatever sentence they deem
appropriate,” before proceeding to “consider all of the
11
§ 3553(a) factors to determine whether they support the sentence
requested by a party.” Id. at 49-50. The judge is required to
“make an individualized assessment based on the facts
presented.” Id. at 50. “After settling on the appropriate
sentence, he must adequately explain the chosen sentence....”
Id.
Mason does not contest that the Guideline ranges were
correctly calculated, nor does he deny that the court engaged in
an extended sentencing dialogue with both parties, permitting
them to voice their concerns and responding to particular
arguments. In the course of this dialogue, the district court
expressly tailored its decision to the specific facts of the
case, noting, among other things, Mason’s history of criminal
activity and the extreme breadth of his pornography trafficking
activities. It connected these observations to the criteria
enumerated in 18 U.S.C. § 3553. The sentence imposed here thus
satisfies the procedural requirements outlined in Gall.
B.
Mason’s sentence is also substantively reasonable. The term
of imprisonment imposed by the district court is within the
Guidelines range and is therefore entitled to a presumption of
reasonableness on appeal. United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006). Mason’s sentence is supported
both by the temporal and quantitative scope of his misconduct.
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With respect to his contention that the Guidelines themselves
are unreasonable, “the proper forum in which to raise this issue
is Congress or the Sentencing Commission, not a federal court.”
United States v. Johnson, 445 F.3d 339, 344 (4th Cir. 2006).
Mason has thus failed to demonstrate that the district court’s
sentencing ruling was substantively unreasonable.
VI.
For the foregoing reasons, we reject each of Mason’s
arguments. His convictions and sentence are affirmed.
AFFIRMED
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