Filed: Feb. 22, 2013
Latest Update: Mar. 26, 2017
Summary: Case: 11-41380 Document: 00512152043 Page: 1 Date Filed: 02/22/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 22, 2013 No. 11-41380 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff – Appellee v. MARK WILLIAM WOERNER, Defendant – Appellant Appeal from the United States District Court for the Southern District of Texas Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges. HIGGINSON, Circuit Judge: A federal jury
Summary: Case: 11-41380 Document: 00512152043 Page: 1 Date Filed: 02/22/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 22, 2013 No. 11-41380 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff – Appellee v. MARK WILLIAM WOERNER, Defendant – Appellant Appeal from the United States District Court for the Southern District of Texas Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges. HIGGINSON, Circuit Judge: A federal jury ..
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Case: 11-41380 Document: 00512152043 Page: 1 Date Filed: 02/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2013
No. 11-41380 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
MARK WILLIAM WOERNER,
Defendant – Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
A federal jury convicted Defendant-Appellant Mark Woerner of two counts
of possession of child pornography and three counts of distribution of child
pornography. On direct appeal, Woerner challenges (1) the district court’s denial
of his motion to suppress email records, (2) the sufficiency of the evidence
against him, and (3) the indictment and sentence, as multiplicitous. Finding no
error, we AFFIRM.
FACTS AND PROCEEDINGS
This child pornography prosecution arose out of what the district court
found were independent state and federal investigations into peer-to-peer file
sharing of child pornography over the Internet.
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No. 11-41380
In the course of his work for the Internet Crimes Against Children Task
Force, Detective Andrew Uhlir of the Wheaton, Illinois Police Department
patrolled Gigatribe, an Internet peer-to-peer file-sharing network, in search of
adult male users who advertised a sexual interest in minor males. Detective
Uhlir identified Gigatribe user “sugardaddylv” as a possible suspect based on his
online profile,1 and requested access to his files. On April 14, 2010, Detective
Uhlir obtained access and downloaded a number of videos and images depicting
children engaged in sexual activities with adults. He then traced the Internet
Protocol (“IP”) address2 to a computer located at 103 Ash Street in Los Fresnos,
Texas, and reported the matter to the Los Fresnos Police Department (“LFPD”).
Relying on that information, Detective Gilbert Rodriguez of the LFPD
applied for and received a warrant to search the 103 Ash Street property for
evidence of possession and distribution of child pornography (“the state search
warrant”). The warrant, which was issued on July 6, 2010, expired after three
days.3 On July 12, 2010, believing the warrant to be expired, Rodriguez and
other state officers executed the expired search warrant and seized computers,
1
The online profile for “sugardaddylv” read, at the time of the investigation:
Single, White, Daddy-type, Laid-back and easy going, Funloving. Financially
secure. Living in Vegas but soon to move. Looking for younger guys to keep me
young and to share with, to mentor and to feel - - make feel good. When I move
to southernmost texas, only 15min from gulf coast, where the weather is always
warm and u can go naked most of the time, I will be looking for a daddies boy
to join me, who will be well taken care of. Could this be you? Let me know.
2
“An [IP] address is a unique 32-bit numeric address, written as numerals separated
by periods, identifying each sender or receiver of information traveling across the Internet. An
IP address has two parts: the identifier of a particular network on the Internet (say, the first
24 bits) and an identifier of the particular device (which can be a server or a workstation)
within that network. In essence, an IP address identifies a single computer . . . .” White
Buffalo Ventures, LLC v. Univ. of Tex. at Austin, 420 F.3d 366, 369 n.6 (5th Cir. 2005).
3
The search warrant expressly provided that it expired within three days, consistent
with Texas law, which provides that “[t]he time allowed for the execution of a search warrant,
exclusive of the day of its issuance and of the day of its execution, is: three whole days,” TEX.
CODE CRIM. PROC. ANN. art. 18.07(a)(2) (West 2012).
2
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cameras, VHS tapes, photographs, and electronic storage media. Upon
determining that the seized evidence furnished probable cause to believe that
Woerner was in possession of child pornography, the state officers arrested
Woerner and transported him to the LFPD.
During this same period, and specifically on May 14, 2010, Special Agent
Barry Couch of the Buffalo Field Office of the Federal Bureau of Investigation
(“FBI”) was independently engaged in a similar undercover operation on
Gigatribe, and accessed and downloaded 8 videos and 170 images depicting child
pornography from the same IP address, which he traced to the same property.
He communicated that information to FBI Special Agent Paul Sparke, who
applied for and received a warrant to search the 103 Ash Street property for
evidence of possession and distribution of child pornography (“the first federal
search warrant”). On July 13, 2010, as Special Agent Sparke and his partner,
Special Agent Melanie Bailey, were preparing to execute the search warrant, the
LFPD informed them of the earlier search and arrest.4 The FBI proceeded with
the search and seized film, videos, tapes, and magazines.
The next day, Special Agents Sparke and Bailey questioned Woerner at
the LFPD for approximately two hours. At the beginning of the interview, they
orally advised him of his Miranda rights and presented him with a written
Miranda waiver form, which he signed. They then informed him that he would
be arrested on child pornography charges. During the interview, Woerner
admitted to having a sexual relationship with a minor (“J.L.”) and to sharing
child pornography over the Internet via his Gigatribe and Yahoo! email accounts.
4
Detective Rodriguez and Special Agent Sparke gave discrepant testimony about when
the LFPD contacted the FBI: Rodriguez testified that he called Sparke during the afternoon
of July 12, whereas Sparke testified that he was not contacted until the morning of July 13.
The district court credited Sparke’s account, and, after reviewing the testimony, we conclude
that its finding was not clearly erroneous.
3
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On July 15, 2010, Special Agents Sparke and Bailey spoke with J.L. and
his parents. J.L. told the agents that Woerner made sexual advances toward
him and displayed child pornography to him while he stayed at Woerner’s
residence during the summer of 2010. He also informed the agents that Woerner
kept child pornography on a flash drive and external hard drive which, the
agents later discovered, had not been seized during the state or federal searches.
On the basis of that information, as well as the information provided by
Woerner, Special Agent Sparke applied for and received a warrant to search the
103 Ash Street property for those items (“the second federal search warrant”).
Agents executed the warrant on July 30, 2010, and seized a Sony Memory Stick
flash drive.
Over the course of the investigation, Special Agent Sparke was informed
by Woerner and others that Woerner used the following email accounts to access
child pornography: “fantastikaktion@yahoo.com” (the “fantastikaktion account”),
“mwoerne@juno.com” (the “juno account”), and “mwoerne@hotmail.com” (the
“hotmail account”). On the basis of that information, Special Agent Sparke
applied for and received a warrant to search the corporate offices of Microsoft,
Yahoo!, and United Online for records associated with Woerner’s email accounts
(“the third federal search warrant”). On August 9, 2010, Special Agent Sparke
executed the warrant and obtained the records, which revealed that Woerner
sent, between January and July 2010, 65 emails from the fantastikaktion
account that contained, in total, more than 90 videos and 1300 images of child
pornography.
On August 10, 2010, Woerner was charged in a four-count indictment with
possession and distribution of child pornography. The indictment was amended
nine days later to correct a typo. Counts One and Two charged Woerner with
possessing child pornography on April 14 and May 14, 2010, respectively, in
violation of 18 U.S.C. § 2252A(a)(5)(B). Counts Three and Four charged Woerner
4
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with distributing child pornography on April 14 and May 14, 2010, respectively,
in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2). A fifth count, for distribution
of child pornography through his email account between January 10 and July 12,
2010, in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)(2), was charged by
superseding indictment on December 7, 2010.
Prior to trial, Woerner moved to suppress evidence seized during the
execution of the expired state search warrant, statements he made to FBI agents
during his custodial interrogation, and the evidentiary fruits of both encounters.
After conducting a hearing, the district court granted, in part, and denied, in
part, Woerner’s motion to suppress in a memorandum opinion and order (the
“first suppression order”). The court ordered the suppression of physical
evidence seized from Woerner’s home and statements he made to the FBI on the
grounds that the physical evidence was seized pursuant to, and his statements
were tainted by, the unlawful July 12 search of his home. The court did not
suppress evidence derived from the FBI interview of J.L. and his family or the
July 30 search of Woerner’s home, concluding that such evidence was not tainted
by the unlawful search. Woerner later moved for clarification of the suppression
order. Specifically, Woerner inquired whether evidence seized pursuant to the
third federal search warrant, including records relating to his fantastikaktion
account, was suppressible as fruit of his suppressed confession. In a second
memorandum and order (the “second suppression order”), the court
characterized Woerner’s motion for clarification as a second motion to suppress,
and ruled that suppression was not warranted because the evidence at issue fell
within the good faith exception to the exclusionary rule.
After a two-day jury trial, Woerner was convicted on all five counts. He
was sentenced to 120 months’ imprisonment for each of the possession counts
and 240 months’ imprisonment for each of the distribution counts, to be served
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consecutively, for a total of 960 months’ imprisonment, the statutory maximum.
He timely appealed.
DISCUSSION
Woerner challenges his conviction on three grounds. First, he argues that
emails from his fantastikaktion account should have been suppressed because
the warrant authorizing their seizure was supported by evidence obtained
through an unlawful search. Second, Woerner contends that the evidence
against him was insufficient because no witness testified that he was at his
computer when the child pornography was downloaded, possessed or distributed.
Third, Woerner submits that the indictment and his sentence were multiplicitous
because his conduct amounted to no more than one continuous crime.
I. Suppression
Woerner challenges the district court’s denial of his motion to suppress
inculpatory emails from his fantastikaktion account. The district court ruled
that such evidence fell within the good faith exception to the exclusionary rule.
We review the district court’s factual findings for clear error and its conclusions
of law de novo, United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003), and
will “uphold the district court’s ruling to deny the suppression motion if there is
any reasonable view of the evidence to support it,” United States v. Michelletti,
13 F.3d 838, 841 (5th Cir. 1994) (en banc) (internal quotation marks omitted).
The evidence at issue was obtained pursuant to a search warrant, so we
begin by evaluating whether the good faith exception to the exclusionary rule
applies. United States v. Pena-Rodriguez, 110 F.3d 1120, 1129 (5th Cir. 1997).
Under the good faith exception, evidence obtained during the execution of a
warrant later determined to be deficient is nonetheless admissible if the executing
officer’s reliance on the warrant was objectively reasonable and made in good
faith. Payne, 341 F.3d at 399–400 (citing United States v. Leon,
468 U.S. 897,
921–25 (1984)). We have identified four situations in which the good faith
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exception does not apply: (1) when the issuing magistrate was misled by
information in an affidavit that the affiant knew or reasonably should have known
was false; (2) when the issuing magistrate wholly abandoned his judicial role; (3)
when the warrant affidavit is so lacking in indicia of probable cause as to render
official belief in its existence unreasonable; and (4) when the warrant is so facially
deficient in failing to particularize the place to be searched or the things to be
seized that executing officers cannot reasonably presume it to be valid. Id.
As the district court pointed out, this case calls upon us to answer whether
the good faith exception applies in a fifth situation: when the magistrate’s
probable cause finding is based on evidence that was the product of an illegal
search or seizure. Statements made by Woerner during the custodial
interrogation, which were later suppressed as fruits of the unlawful July 12
search, appear in paragraphs 30 and 31 of the warrant affidavit supporting the
third federal search warrant. The district court found, and the government
concedes, that such statements were the only evidence in the warrant affidavit
specifically linking Woerner’s possession of child pornography to the
fantastikaktion account.
We decline to announce a categorical rule governing this situation,
following Leon’s guidance that “suppression of evidence obtained pursuant to a
warrant should be ordered only on a case-by-case basis and only in those
unusual cases in which exclusion will further the purposes of the exclusionary
rule.” Leon, 468 U.S. at 918. We note that the purpose of the exclusionary
rule—deterring future Fourth Amendment violations—would be served, in some
cases, by suppressing evidence seized pursuant to a warrant supported by
evidence obtained through an unlawful search. See Davis v. United States, 131
S. Ct. 2419, 2426 (2011) (“The rule’s sole purpose, we have repeatedly held, is to
deter future Fourth Amendment violations.”). For example, if the officer
applying for the warrant knew or had reason to know that the information was
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tainted and included it anyway without full disclosure and explanation, then
suppressing the evidence seized pursuant to that warrant “pay[s] its way by
deterring official lawlessness.” Illinois v. Gates, 462 U.S. 213, 258 (1983) (White,
J., concurring); see also United States v. McGough,
412 F.3d 1232, 1240 (11th
Cir. 2005); United States v. McClain,
444 F.3d 556, 565–66 (6th Cir. 2005);
United States v. Reilly,
76 F.3d 1271, 1280 (2d Cir. 1996); United States v.
Wanless,
882 F.2d 1459, 1466 (9th Cir. 1989); United States v. White,
890 F.2d
1413, 1417–19 (8th Cir. 1989); United States v. Thornton,
746 F.2d 39, 49 (D.C.
Cir. 1984). Suppression likewise might be justified if the officer responsible for
the illegal predicate search provided information—knowing it to be tainted, but
concealing that fact—to a second officer for use in a successive search warrant
application.
The facts before us, however, present a far different case. As the district
court found,
[T]he law enforcement officers who carried out each investigation
did not become aware of the existence of the other investigation
until after Woerner’s home was searched and he was arrested on
July 12, 2010. Nothing in the record suggests that Gilbert
Rodriguez, the Los Fresnos Police Department officer who conducted
the original search, intentionally set out to launder the fruits of the
illegal search conducted on July 12, 2010, by passing the illegally-
obtained evidence to the unsuspecting FBI agents who prepared the
application of the August 6 warrant. Nor do the facts of this case, as
this Court finds them, give rise to the inference of intentional or
reckless misconduct on Rodriguez’s part. After hearing all of the
testimony, the Court finds that the FBI took control of the
investigation on July 13, 2010, for reasons unrelated to the illegal
search. This Court therefore finds that the police misconduct
leading to the inclusion of Woerner’s statements in paragraphs 30
and 31 of the August 6 warrant application was at most the result
of negligence of one or more law enforcement officers.
Moreover, Special Agent Sparke, the affiant for the third federal search warrant,
could not have known that statements made by Woerner in the FBI interview
8
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would later be suppressed. The FBI searched Woerner’s home pursuant to a
valid warrant, and Woerner signed a valid Miranda waiver before making
inculpatory statements during the FBI interview. Under these facts, involving
state and federal investigations that were parallels, suppression is not justified.
Cf. United States v. Pope, 467 F.3d 912, 915–20 (5th Cir. 2006) (applying good
faith exception where, as here, second search warrant was based on information
discovered during an initial search later determined to be unlawful).
Having concluded that the good faith exception applies, we end our
suppression analysis at this stage. United States v. Cavazos, 288 F.3d 706, 709
(5th Cir. 2002).
II. Sufficiency of the Evidence
Woerner argues that the evidence adduced at trial is insufficient to
support his convictions because no witness testified that Woerner was at his
computer when the child pornography was downloaded, possessed or distributed.
“A challenge to the sufficiency of evidence following a proper motion for
acquittal is reviewed by this court de novo.” United States v. Winkler, 639 F.3d
692, 696 (5th Cir. 2011). Because Woerner raised his sufficiency challenge at the
close of evidence, the standard of review is “whether a rational trier of fact could
have found that the evidence established the essential elements of the offense
beyond a reasonable doubt,” United States v. Moreland,
665 F.3d 137, 148–49
(5th Cir. 2011). In determining whether this standard is met, we “view the
evidence in the light most favorable to the verdict and drawing all reasonable
inferences from the evidence to support the verdict.” United States v. Percel,
553
F.3d 903, 910 (5th Cir. 2008).
A. Counts One and Two
To prove its possession counts against Woerner, the government was
required to show beyond a reasonable doubt that he (1) knowingly (2) possessed
material containing an image of child pornography (3) that had been transported
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in interstate or foreign commerce by any means, including by computer. 18
U.S.C. § 2252A(a)(5)(B); Moreland, 665 F.3d at 149.
At the close of evidence, Woerner moved for a directed verdict on the basis
that the government “failed to prove each and every element of its necessary
elements in regard to counts one through five.” On appeal, Woerner restricts
his sufficiency challenge to the “knowing” and “possession” elements.
Specifically, Woerner argues that the government cannot establish possession,
much less knowing possession, because no witness testified that Woerner was
at his computer when the child pornography was downloaded, possessed or
distributed. The government may prove possession by showing that the
defendant actually or constructively possessed material containing child
pornography. Moreland, 665 F.3d at 149. “Actual possession means the
defendant knowingly has direct physical control over a thing at a given time.”
Id. “Constructive possession is the ownership, dominion or control over an
illegal item itself or dominion or control over the premises in which the item is
found.” Id. Where, as here, there is no evidence that the defendant had direct
physical control over the images at issue, we proceed to a constructive possession
analysis. See id. at 150; United States v. Terrell, 700 F.3d 755, 765 (5th Cir.
2012).
Our “common sense, fact-specific approach” to determine constructive
possession often hinges on whether the defendant had exclusive or shared
control over the place in which the child pornography was found. Moreland, 665
F.3d at 150–52. “Dominion, control, and knowledge, in most cases, may be
inferred if a defendant had exclusive possession of the place in which the
contraband is found, but this inference cannot be sustained if the defendant
shared joint occupancy of the place.” Id. If the place where the child
pornography is found is shared by multiple users, the government must
introduce some evidence, in addition to the evidence of shared use, to support a
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reasonable jury inference that the defendant knew that the images existed and
had the knowledge and ability to access and exercise dominion and control over
them. Id. at 150–51.
Woerner contends that neither of the places where the child pornography
was found—his fantastikaktion account and Gigatribe shared folder—were
under his exclusive use and control. As evidence of shared usage of his computer
and email account, Woerner submits that both J.L., the minor who stayed over
at his house, and Jeremiah Walker, his former roommate and the creator of the
fantastikaktion account, both had access to Woerner’s computer and knew the
login and password to his fantastikaktion account. The IP address linking the
fantastikaktion and Gigatribe accounts to Woerner, he continues, could have
belonged to any person who accessed his unsecured wireless internet.
Assuming, arguendo, that neither the computer nor the email account was
under Woerner’s exclusive use and control, we nonetheless reject Woerner’s
sufficiency challenge because the government introduced considerable evidence
from which the jury could have reasonably inferred that Woerner knew that the
images existed and had the knowledge and ability to access and exercise
dominion and control over them:
• The IP address from which the child pornography was downloaded
and distributed via the fantastikaktion and Gigatribe accounts was
registered to the Ash street property where Woerner resided.
Woerner’s neighbor testified that Woerner lived alone, and
Woerner’s mailman testified that he did not deliver mail to any
other person at that address during the relevant time period.
• The profile picture associated with the Gigatribe account
“sugardaddylv” from which the child pornography was distributed
was of Woerner, and the profile contained other identifying
information, such as Woerner’s relative age, ethnicity, background,
and interests.
• The fantastikaktion account, which contained child pornography
and from which child pornography was distributed, was registered
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in Woerner’s name. Although the account initially belonged to
Jeremiah Walker, his former roommate, it was left to Woerner when
Walker moved out in 2006, and Woerner subsequently changed the
password so others would not have access. Emails sent from that
account often included identifying photographs and information
about his daily life, and were regularly signed “Mark.” Many emails
sent between January and July 2010 contained child pornography
and commentary from Woerner on the substance and quality of the
images and videos, indicating that Woerner was aware of their
illegal content and knowingly distributed them to others.
• More than 90 videos and 1300 images of child pornography were
found in Woerner’s fantastikaktion account alone, and their content
was evident from their file names, undercutting any potential
argument that they were downloaded by mistake. See United States
v. Payne, 341 F.3d at 404 (holding that “the number of images in
Payne’s possession, taken together with the suggestive titles of the
photographs,” among other evidence, “support[ed] the jury’s
inference that Payne knew he was receiving child pornography”).
• J.L. testified that Woerner gave him a flash drive containing images
of child pornography. According to J.L., Woerner told him that he
should share the child pornography with other cadets at flight
school, but acknowledged they would both get in trouble if he did,
evidence that Woerner possessed the images and was aware of their
illegal content.
Reviewing this evidence in a light most favorable to the jury’s verdict, we
conclude that it is more than sufficient to support Woerner’s convictions for
possession of child pornography. We have affirmed child pornography possession
convictions against sufficiency challenges where the evidence of knowing
possession was less comprehensive than it is here. See, e.g., Terrell, 700 F.3d at
765; Winkler, 639 F.3d at 700; United States v. Goff, 155 F. App’x 773, 775–76
(5th Cir. 2005) (per curiam); United States v. Rios, 477 F. App’x 209, 210 (5th
Cir. 2012) (per curiam).
The principal deficiency in the government’s case to which Woerner
objects—that no witness put him at the computer when the child pornography
was downloaded, possessed or distributed—lacks the significance he attributes
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to it. More often than not the government lacks such evidence because child
pornography is not something people tend to download, possess, or distribute in
the company of others. Even if the lack of witnesses would allow Woerner to
craft a plausible narrative for how the child pornography ended up in his email
and file-sharing accounts, that would not be enough to upset the jury verdict
against him. Winkler, 639 F.3d at 700 (“At most, Winkler posited plausible
alternative explanations for how the illicit pornography came to be on his
computer. But a jury is not required to accept any alternative explanation.
Rather, taking into account the overwhelming evidence the government
presented of Winkler’s involvement with child pornography, and that he
purchased access to child pornography websites and downloaded child
pornography, the evidence presented by the government was sufficient for the
jury to reject the evidence presented by the defense, and to credit the
prosecution’s case.”) (citation omitted); see also Moreland, 665 F.3d at 155–60
(Jolly, J., dissenting) (emphasizing that it is the province of the jury to repudiate
a defendant’s account, however persuasive it may seem on appeal).
B. Counts Three, Four, and Five
To prove its distribution counts against Woerner, the government was
required to establish beyond a reasonable doubt that he (1) knowingly (2)
distributed a visual depiction of a minor engaging in sexually explicit conduct (3)
which had either traveled in interstate commerce or been produced using
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materials that had traveled in interstate commerce.5 18 U.S.C. § 2252(a)(2);
United States v. Chiaradio, 684 F.3d 265, 281 (1st Cir. 2012).
Woerner’s challenge to the distribution counts is the same as his challenge
to the possession counts: namely, that the evidence is insufficient to prove
beyond a reasonable doubt that he distributed child pornography because “no
witnesses put Woerner in front of his computer” when the images were
distributed. He does not contest that child pornography was distributed, only
that he distributed it.
Reviewing the evidence in a light most favorable to the jury’s verdict, we
conclude that there was sufficient evidence linking Woerner to the emails and
Gigatribe account. The Gigatribe profile for user “sugardaddylv” contained a
picture of Woerner as well as other identifying information, such as Woerner’s
relative age, ethnicity, background, and interests. The fantastikaktion email
account was registered in Woerner’s name, and there is no evidence at others
had access to it when the emails were sent. Many such emails included
photographs of Woerner and information about his daily life, and were signed
“Mark.” It was reasonable for the jury to infer from such evidence that Woerner,
not an unidentified third party, was responsible for distributing the child
pornography from his email and Gigatribe accounts.
III. Multiplicity
At the close of evidence, Woerner’s counsel moved to dismiss one of Counts
One and Two and one of Counts Three and Four on the basis that the
5
The indictment charges Woerner, in Counts Three, Four, and Five, each time, with
violating two separate statutes proscribing the distribution of child pornography: 18 U.S.C.
§ 2252(a)(2), which proscribes the knowing distribution of any visual depiction of a minor
engaging in sexually explicit conduct, and 18 U.S.C. § 2252A(a)(2), which proscribes the
knowing distribution of any child pornography. Woerner did not raise a duplicity challenge
before the district court and does not raise one on appeal, however. See United States v.
Reagan, 596 F.3d 251, 253 (5th Cir. 2010) (“Reagan did not raise a duplicity challenge before
the district court and does not raise one on appeal. Accordingly, we do not consider whether
the sentence was duplicitous.”)
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government failed to show two separate acts of possession and distribution. The
court denied both motions. Woerner’s counsel did not, at that time, move to
dismiss Count Five, which charges distribution of child pornography from the
fantastikaktion account between January and July 2010. On appeal, Woerner
continues to press his multiplicity challenge, but appears to take the alternative
position that only one total count of conviction should stand. He does not specify
which one.
We review trial court rulings on multiplicity challenges de novo. United
States v. Kimbrough, 69 F.3d 723, 728–29 (5th Cir. 1995). Where a defendant
raises a multiplicity challenge for the first time on appeal, we review for plain
error. United States v. Spurlin,
664 F.3d 954, 965 (5th Cir. 2011). Accordingly,
Woerner’s mulitiplicity challenge with respect to Counts One through Four is
reviewed de novo, and his challenge to Count Five is reviewed for plain error.
An indictment is multiplicitous if it charges a single offense in separate
counts. See United States v. Ogba, 526 F.3d 214, 232–33 (5th Cir. 2008) (“A
challenge to multiplicity invokes the Double Jeopardy Clause, which protects
against multiple punishments for the same offense, where Congress has not
authorized cumulative punishment for one offense.”) (internal quotation marks
and citation omitted). There are at least two species of multiplicity challenges,
both of which are implicated by this appeal. The first type arises when a
defendant is charged with violating two different statutes, one of which is
arguably the lesser included offense of the other. This is the species of
multiplicity challenge addressed in Blockburger v. United States,
284 U.S. 299
(1932), and its progeny. Unless each offense requires proof of an element that
the other does not, a defendant may not be charged with both. United States v.
Nguyen,
28 F.3d 477, 485 (5th Cir. 1994) (citing Blockburger, 284 U.S. at
303–05). The second type of multiplicity challenge arises when charges for
multiple violations of the same statute are predicated on arguably the same
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criminal conduct. In that circumstance, the court inquires “whether separate
and distinct prohibited acts, made punishable by law, have been committed.”
United States v. Planck, 493 F.3d 501, 503 (5th Cir. 2007).
In his first multiplicity challenge, Woerner argues that possession of child
pornography is a lesser-included offense of distribution of child pornography,
comparing the two crimes to simple possession of a controlled substance and
possession with intent to distribute. His comparison is inapt. Simple possession
of a controlled substance does not contain an element that possession with intent
to distribute lacks, and thus, under Blockburger, a defendant may not be
convicted of both offenses if they are predicated on the same act. United States
v. Finley, 477 F.3d 250, 256–57 (5th Cir. 2007). The same is not true of
possession and distribution of child pornography. A defendant need not possess
child pornography to distribute it, Chiaradio, 684 F.3d at 280 (“One can envision
circumstances in which an individual could be guilty of distribution without ever
obtaining possession of (or even coming into contact with) the contraband. For
example, the broker of a deal between a person who has child pornography and
a person who wishes to procure it may be guilty of distribution but not guilty of
possession.”), and, vice versa, a defendant need not distribute child pornography
to possess it, United States v. Goluba,
672 F.3d 304, 307 (5th Cir. 2012) (“[T]he
forensic analysis of [the defendant]’s computers ‘revealed that [he] did not
distribute his collection of child pornography.’ ”). For that reason, we join the
First and Seventh Circuits in holding that possession of child pornography is not
the lesser-included offense of distribution of child pornography, see United States
v. Chiaradio,
684 F.3d 265, 280 (5th Cir. 2012); United States v. Faulds,
612 F.3d
566, 569–71 (7th Cir. 2010), and correspondingly reject Woerner’s claim that
Counts One and Two are lesser included offenses of Counts Three, Four, and Five.
In his second multiplicity challenge, Woerner argues that he did not
commit two separate acts of possession and three separate acts of distribution
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of child pornography. To reiterate, the test is “whether separate and distinct
prohibited acts, made punishable by law, have been committed.” Planck, 493
F.3d at 503. That test has two steps. First, we look to the statute charged to
ascertain the “allowable unit of prosecution,” or the actus reus of the crime.
United States v. Reedy, 304 F.3d 358, 365 (5th Cir. 2002). “Congress’s intent is
paramount on this point: the legislature may castigate a particular act by
exposing the actor to several prosecutions and punishments, or it may specify
that the act should only be subject to a single unit of prosecution.” Chiaradio,
684 F.3d at 272. Second, we review the evidence to see how many distinct
criminal acts the defendant committed. United States v. Buchanan,
485 F.3d
274, 282 (5th Cir. 2007).
A. Multiplicity Challenge to Possession Counts
The indictment charges Woerner, in Counts One and Two, with
“knowingly possess[ing] material that contained images of child pornography,”
in violation of 18 U.S.C. § 2252A(a)(5)(B). The allowable unit of prosecution for
§ 2252A(a)(5)(B) is each “material,” or medium, containing an image of child
pornography. Planck, 493 F.3d at 504. To charge multiple possession counts, the
government must have evidence that a defendant (1) “has images stored in
separate materials,” and (2) “the prohibited images were obtained through the
result of different transactions.” Id.
Woerner argues that the two possession counts are predicated on the same
conduct. The government’s response—that Counts One and Two are not
multiplicitous because Woerner possessed child pornography on different
days—overlooks that the pertinent unit of prosecution is each material, not each
day. See id.; see also United States v. Ehle, 640 F.3d 689, 697 (6th Cir. 2011)
(“Carried to its logical extreme, the idea would permit possession of contraband
for ten days (240 hours) to be charged as ten (or maybe 240) separate counts of
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possession. The policy underlying the Double Jeopardy Clause clearly does not
permit such parsing.”).
Under the governing standard, whether Counts One and Two are
multiplicitous hinges upon whether the evidence adduced at trial was sufficient
to support the jury’s verdict that (1) Woerner possessed two or more separate
materials, and (2) the images contained therein were obtained through different
transactions. The latter is straightforward. The jury was entitled to infer from
the large number of images and videos downloaded from Woerner’s Gigatribe
shared folder on April 14 and May 14, 2010, and emailed from Woerner’s
fantastikaktion account between January 10 and July 2, 2010, that the images
in his possession were obtained through different transactions. Planck, 493 F.3d
at 506 (Wiener, J., concurring) (“Given the overwhelming number of images and
movies stored on the computers and diskettes in Planck’s house, it would exceed
credulity to conclude that Planck acquired, or could have acquired, all the
images and movies at the very same time.”); United States v. Hinkeldey, 626
F.3d 1010, 1014 (10th Cir. 2010).
Slightly more difficult is the question whether the evidence supports the
jury’s verdict that Woerner possessed two “materials” containing child
pornography. We have interpreted the term “material,” which is not defined in
18 U.S.C. § 2252A(a)(5)(B), to denote a medium containing images of child
pornography. See Planck, 493 F.3d at 503. This child pornography prosecution
is different than most because the physical media purportedly containing child
pornography—the computer and the flash drive—were never entered into
evidence. The computer was suppressed as a fruit of the unlawful July 12
search, and the flash drive, which was seized during the lawful July 30 search,
has not been shown by the parties to have been entered into evidence.
However, even though the government did not enter into evidence
Woerner’s home computer, the jury had ample evidence from which to infer that
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the computer was a “material that contained images of child pornography” that
Woerner knowingly possessed. It is reasonable to infer from the extensive
collection of child pornography found on Woerner’s fantastikaktion and Gigatribe
accounts that he stored at least some of his files on his home computer:
witnesses testified he possessed and used this computer, and the IP address
linked to the fantastikaktion and Gigatribe accounts was registered to the Ash
street property where this computer was located and where Woerner alone
resided. Similarly, while the government apparently did not enter into evidence
the flash drive, the jury could have reasonably inferred that it was a “material
that contained images of child pornography” that Woerner knowingly possessed,
in light of J.L.’s testimony that Woerner possessed it and it contained child
pornography, Woerner’s admission that bringing it to flight school might get
them both in trouble, and the considerable evidence that Woerner knowingly
possessed and distributed child pornography on a large scale.
Having found that the evidence adduced at trial was sufficient to support
the jury’s verdict that Woerner possessed two or more separate materials and
the images contained therein were obtained through separate transactions, we
conclude that Counts One and Two are not multiplicitous.
B. Multiplicity Challenge to Distribution Counts
The indictment charges Woerner, in Counts Three, Four, and Five, with
“knowingly distribut[ing] any visual depiction . . . involv[ing] the use of a minor
engaged in sexually explicit conduct,” in violation of 18 U.S.C. § 2252(a)(2). The
unit of prosecution for § 2252(a)(2) is each transaction in which one or more
depictions of a minor engaged in sexually explicit conduct are distributed. See
United States v. Pires, 642 F.3d 1, 16 (1st Cir. 2011); United States v. Polouizzi,
564 F.3d 142, 158 (2d Cir. 2009); see also Reedy, 304 F.3d at 365–68 (holding
that a person cannot be charged more than once for images received or
distributed in the same transaction).
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Under that standard, Counts Three, Four, and Five are not multiplicitous
because they involve three separate transactions in which multiple visual
depictions were distributed: (1) the April 14, 2010 transaction in which Detective
Uhlir downloaded approximately 11 videos and images from Woerner’s shared
folder on Gigatribe, (2) the May 14, 2010 transaction in which Special Agent
Couch downloaded 8 videos and 170 images from the same account, and (3) the
65 emails sent between January 10 and July 2, 2010 from Woerner’s
fantastikaktion account containing, in total, more than 90 videos and 1300
images of child pornography. See Pires, 642 F.3d at 16; Polouizzi, 564 F.3d at 158.
CONCLUSION
For the foregoing reasons, we AFFIRM.
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