|IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
UNITED STATES OF AMERICA,
TERRY BURTON KIMBROUGH,
Before REAVLEY and EMILIO M. GARZA, Circuit Judges, and PRADO(1), District
In 1992, the United States Customs Service (USSC) became aware of a
computer bulletin board system (BBS) in Denmark known as BAMSE. USSC began
to investigate BAMSE and discovered the BBS was involved in the international
distribution of pornography, including child pornography, via computer.
USSC also uncovered two additional Danish BBS's which included child pornography.
Subscribers to these BBS's can transport or "
In February of 1993, USSC held a three-day briefing for its agents on
its investigation, known as Operation Long Arm, into the illegal importation
of child pornography from computer bulletin boards. The agents received
. On March 4, 1993, agents executed search warrants for Kimbrough's
residence and business. During the execution of the warrants, they seized
a number of items including computers and computer related equipment, computer
disks and accessories, videocassette and audio cassette tapes, magazines,
receipts, ledgers, and various records. Among the seized materials were
several depictions of child pornography primarily recovered
Kimbrough was indicted in Count 1 and Count 2 for knowingly receiving, by computer, a visual depiction, which had been transported in interstate commerce and the production of which involved the use of a minor engaging in sexually explicit conduct in violation of Title 18 U.S.C. Sections 2252( a)(2) and 2; in Count 3 of knowingly possessing three or more matters which contain visual depictions that had been shipped and transported in interstate and foreign commerce, the production of which involved the use of a minor engaging in sexually explicit conduct and which visual depictions were of such conduct in violation of Title 18 U.S.C. Sections 2252(a)(4)(B) and 2; in Count 4 of knowingly possessing three or more matters which contain visual depictions, produced using materials which had been transported by any means, including interstate and foreign commerce, the production of which involved the use of a minor engaging in sexually explicit conduct and which visual depictions were of such conduct in violation of Title 18 U.S.C. Sections 2252(a)(4)(B) and 2; in Counts 5- 7 of knowingly using a means of interstate commerce for the purpose of transporting obscene material in interstate commerce in violation of Title 18 U.S.C. Sections 1465 and 2; and in Count 8 of forfeiture pursuant to Title 18 U.S.C. Section 2253(a). The Government subsequently dropped Counts 5, 6 and 7. After a jury trial, Kimbrough was found guilty of Counts 1-4 and sentenced to a term of imprisonment of 72 months as to Counts 1 and 2 of the indictment and 60 months as to Counts 3 and 4, with all sentences to run concurrently.
Legality of Search and Seizure Issue
The Fourth Amendment prohibits issuance of general warrants allowing officials to burrow through a person's possessions looking for any evidence of a crime. Andreson v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 2748, 49 L.Ed.2d 627 (1976). A warrant must particularly describe the place to be searched and the person or things to be seized. Id.; United States v. Layne, 43 F.3d 127, 132 (5th Cir.), cert. denied, __ U.S. __, 115 S. Ct. 1722, 131 L. Ed 2d 580 (1995). In testing whether a specific warrant meets the particularity requirement, a court must inquire whether an executing officer reading the description in the warrant would reasonably know what items are to be seized. Layne, 43 F.3d at 132. In circumstances where detailed particularity is impossible, generic language is permissible if it particularizes the types of items to be seized. Id. In cases where warrants seek to seize material presumptively protected by the First Amendment, the level to which the items to be seized must be particularly described is heightened. Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S. Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961).
The warrants here are sufficiently particular to withstand Kimbrough's challenge. The language in the warrants properly limited the executing officers' discretion by informing them what items were to be seized. See Layne, 43 F.3d at 132-33 (holding that a warrant seeking "Child pornography; records of victims; drawings; pictures; computer disks; sexual devices; videotapes; child abuse books; magazines; audio tapes; and any other obscene or child pornographic material" was particular enough to limit the officer's discretion).
Kimbrough's reliance on cases involving obscenity is misplaced.(2) The determination of which presumptively protected materials are obscene is a legal one and, therefore, not to be left to the discretion of the executing officers. Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison, is a factual determination that leaves little latitude to the officers. See Id.; See also United States v. Hurt, 808 F.2d 707, 708 (9th Cir.), cert. denied, 484 U.S. 816, 108 S. Ct. 69, 98 L. Ed. 2d 33 (1987) ("Any rational adult person can recognize sexually explicit conduct engaged in by children under the age of 16 when he sees it.") (emphasis in original). We therefore find this contention to be without merit.(3)
Kimbrough further contends that, even assuming the warrants were valid, they were illegally executed. He argues that the law enforcement agents seized virtually every record, document and paper found at the premises, and confiscated every video and audio cassette tape. The Government denies that the search was overbroad. Specifically, the Government, through the testimony of Agent Johnson at the suppression hearing before the trial court, argues that the seizure of all video and audio tapes was necessary because the titles of such tapes were not dispositive of their content and that the absence or presence of child pornography in such items could not be determined by a cursory examination on the premises.
Blatant disregard by executing officers of the language of a search warrant can transform an otherwise valid search into a general one and, thus, mandate suppression of all evidence seized during the search. United States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978); United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988). The execution of a search warrant "must be one directed in good faith toward the objects specified in the warrant." Gurleski v. United States, 405 F.2d 253, 258 ( 5th Cir. 1968), cert. denied, 395 U.S. 981, 89 S. Ct. 2140, 23 L. Ed. 2d 769 (1969).
Kimbrough has failed to meet his burden of proof in challenging the execution of the search warrants. See United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994); United States v. Virgo, 413 F.2d 691, 693 ( 5th Cir. 1969). The fact that the executing officers chose not to review each video tape, audio tape and document on the premises does not make this search presumptively invalid. While the executing officers seized numerous documents that were later determined to be irrelevant to the case against Kimbrough, the record reflects significant numbers of documents were left at the scenes after an initial review showed them to be not within the scope of the warrants. Kimbrough has not directed our attention to specific examples of seized items that would demonstrate an absence of the executing officers' good faith belief that the items were described in the warrants. We find this argument to be without merit.
Multiplicitious Counts Issue
The Appellee first argues that the grouping of the offenses by the trial court under the Sentencing Guidelines removed the danger of multiple punishments. It contends that for "offenses that are to be grouped under U.S.S.G. 3D1.2, the applicability of a single punishment prevents any Fifth or Eighth Amendment violations." This argument completely misstates applicable law. This Court has explicitly held that for double jeopardy purposes, sentences are not truly concurrent where a mandatory special assessment is separately imposed on each conviction. United States v. Berry, 977 F.2d 915, 920 (5th Cir. 1992). Kimbrough's sentence included mandatory special assessments for each count. Furthermore, the Supreme Court precedent clearly holds that, for purposes of double jeopardy, a " separate conviction, apart from the concurrent sentence, has potential adverse . . . consequences." Ball v. United States, 470 U.S. 856, 865, 105 S. Ct. 1668, 1673, 84 L.Ed.2d 740 (1985).
The Appellee next argues that the materials that give rise to the two possession-based counts are different because the materials in Count 3 were themselves transported in interstate commerce while the materials referenced in Count 4 were produced using materials that had been transported in interstate commerce. The Appellee attempts to compare the separate counts here with counts charging possession of separate drugs or weapons. However, each count charges possession of "three or more" items and, under the particular facts of this case, each of the items listed in counts 3 and 4 both traveled in commerce (via the computer) and was produced using materials that traveled in interstate or foreign commerce.
Both Counts 3 and 4 charge violations of the same statute on or about the same date and both involve possession of three or more items. The only difference between the charges relied on by the government in their brief is the jurisdictional element -- whether the pictures or the materials used to produce them traveled in commerce. We find this distinction to be artificial and an unlawful attempt to divide a single offense into multiple offenses.(5) See Sanabria v. United States, 437 U.S. 54, 66 n. 20, 98 S. Ct. 2170, 2180 n. 20, 57 L. Ed. 2d 43 (1978)("A single offense should normally be charged in one count rather than several, even if different means of committing the offense are alleged.")
We must defer to the legislature's determination of whether a specific
course of conduct constitutes one or more separate crimes. Sanabria, 437
U.S. at 70, 98 S. Ct. at 2182, 57 L. Ed. 2d 43. In construing this statute,
we look first to the plain language chosen by Congress. United States v.
Barlow, 41 F.3d 935, 942 (5th Cir. 1994), cert. denied, __ U.S. __ , 115
S. Ct. 1389, 131 L. Ed. 2d 241 (1995). In this case, the plain language
of the statute's requirement that a defendant possess "three or more" items
indicates that the legislature did not intend for this statute to be used
to charge multiple offenses.(6) Furthermore, to the extent that the statute
can be considered ambiguous, the rule of lenity requires us to resolve
that ambiguity in favor of Kimbrough. See United States v. Cooper, 966
F.2d 936, 943 n. 11 (5th Cir.), cert. denied, __ U.S. __, 113 S. Ct. 481,
121 L. Ed. 2d 386 (1992)("When Congress fails to indicate the allowable
unit of prosecution with clarity, doubt as to congressional intent should
be resolved in favor of lenity for the accused.") We find that Counts 3
and 4 of Kimbrough's indictment are multiplicitous. See Bell v. United
States, 349 U.S. 81, 84, 75 S. Ct. 620, 622, 99 L. Ed. 905 ( 1955) (holding
"if Congress does not fix the punishment for a federal offense clearly
and without ambiguity, doubt will be respolved against turning a single
transacion into multiple offenses"). Therefore, the trial court should
vacate Kimbrough's conviction on either of Counts 3 or 4. See Heath, 970
F.2d at 1402; Brechtel, 997 F.2d at 1112.
Access to Evidence Issues
Kimbrough's motion had requested inspection and copying of the materials
in question. Rule 16(a)(1)(C) provides in relevant part:
Fed. R. Civ. P. 16(a)(1)(C). Despite Kimbrough's requests and the language
of Rule 16, the Government refused to allow Kimbrough to copy the charged
items of child pornography. Kimbrough moved for dismissal of
Child pornography is illegal contraband. See 18 U.S.C. 2252(a)(4); Tex.
Penal Code 43.26; New York v. Ferber, 458 U.S. 747, 756-59, 102 S. Ct. 3348, 3354-55, 73 L. Ed. 2d 1113 (1982). We decline to find that Rule 16 provides such contraband can be distributed to, or copied by, the defense. However, even if there was a Rule 16 violation, Kimbrough's argument fails . The Government's offer to make the materials available for inspection but not to allow them to be copied was reasonable. Furthermore, Kimbrough has failed to demonstrate that any actual prejudice arose from his inability to procure copies of the charged items. His conclusory assertion that the amount of material seized and the time it took the Government agents to review the material demonstrates he was precluded from having an adequate opportunity to review the material and obtain an expert for trial is simply insufficient. See United States v. Cronic, 466 U.S. 648, 663, 104 S. Ct. 2039, 2049, 80 L.Ed.2d 657 (1984) ("Neither the period of time that the Government spent investigating the case, nor the number of documents that its agents reviewed during that investigation, is necessarily relevant to the question whether a competent lawyer could prepare to defend the case in [the time available]. The Government's task of finding and assembling admissible evidence that will carry its burden of proving guilt beyond a reasonable doubt is entirely different from the defendant's task in preparing to deny or rebut a criminal charge.") We find that any prejudice or technical violation of Rule 16 is insufficient to comprise a deprivation of Kimbrough's constitutional rights. We therefore find this contention to be without merit.
Fair Trial Issues
One month before trial, Kimbrough filed a motion pursuant to Title 18 U.S. C. Section 3161(8)B(ii) requesting a continuance based in part on his counsel's desire to have access to the charged material. The following day, September 10, 1993, the Government sent Kimbrough's counsel a telefax indicating that the materials seized from Kimbrough's residence and business would be available for viewing the week of September 20th through the 24th of 1993. Kimbrough then filed a supplement to his motion for continuance arguing that the Government's "delay in making available to the defense all material in this case, [rendered] it impossible for [him] to be adequately prepared for trial by October 4, 1993." The trial court denied both motions without elaboration.
On October 6, 1993, the Government tendered its exhibit list containing 20 exhibits. The morning of trial, the Government submitted an amended exhibit list containing more than 70 exhibits. Kimbrough objected on the record to the introduction of these new exhibits. The Government responded that the earlier exhibit list had included most of the exhibits on the amended list and had merely not listed them individually. The Government noted that the remainder of the new exhibits were added in response to the defendant's exhibit list. The trial court found that the arguments were best taken up on an item-by-item basis as the exhibits were offered during the trial. Kimbrough made such objections as the trial progressed and the trial court overruled those objections.
Although we cannot condone unreasonable restriction of meaningful access to potential exhibits, Kimbrough has not shown the serious prejudice necessary to succeed on this argument. Any error, therefore, was harmless . Kimbrough's counsel was given two weeks notice of the week that the exhibits would be available for his inspection. As discussed above, Kimbrough's conclusory assertion that the amount of material seized and length of the Government's review of the material demonstrates prejudice is insufficient to succeed on this argument. See Cronic, 466 U.S. at 663, 104 S. Ct. at 2049, 80 L. Ed. 2d 657. Kimbrough has failed to support his assertions that he was precluded from having an adequate opportunity to review the material or obtain an expert for trial The nature of the defense raised -- that the depictions had been altered and were not of actual children -- would not require review of each document. Furthermore, while Kimbrough claims it was necessary for him to "consult with experts in the field of computer technology and pediatric and adolescent anatomy . . . and interview potential witnesses involved in the Government's investigation," he has failed to show the connection between his failure to accomplish these tasks and the trial court's denial of his motions for continuance. Similarly, he argues it was necessary to "have an analysis conducted of the computer files seized" but fails to describe what type of analysis would have been done and what he expected the analysis would have demonstrated. On the facts and arguments before us, we are unable to say that the trial court's decision to deny Kimbrough's motions for continuance prevented him from receiving a fair trial. We therefore find this argument to be without merit.
Kimbrough's argument regarding the Government's amended exhibit list is similarly unconvincing. The Government contends that the expanded exhibit list added only two pieces of evidence, both of which were necessary for rebuttal of Kimbrough's defense. The Government contends that the remainder of the list merely specified which portions of the previously identified exhibits were to be introduced. Kimbrough, who bears the burden on this issue, has failed to rebut the government's assertion and an examination of the record supports the Government's contention. We find Kimbrough's assertion that he was unfairly prejudiced by the admission of exhibits listed in the Government's amended exhibit list to be meritless.
Constitutionality of Title 18 U.S.C. Section 2252 Issues
Jury Instruction Issue
For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
First: That the defendant knowingly received certain visual depictions;
Second: That such visual depictions were shipped or transported in foreign commerce;
Third: That such visual depictions were shipped or transported in foreign commerce by any means, including by computer;
Fourth: That the production of such visual depictions involved the use of a minor engaging in sexually explicit conduct;
Fifth: That such visual depictions are of minors engaged in sexually explicit conduct; and
Sixth: That the defendant knew that at least one of the performers in such visual depictions was a minor.
The instructions as to counts three and four are substantially similar but substitute the possession language for the receiving language. Kimbrough argues that the Court should have instructed the jury that "it must find Defendant knew the producing of the depiction involved the actual use of a minor engaging in sexually explicit conduct."
As noted above, in X-Citement Video, Inc., 115 S. Ct. at 472, the Supreme Court held that the term "knowingly" in Section 2252(a)(1) and (a)( 2) "extends to both the sexually explicit nature of the material and to the age of the performers." See also, United States v. Burian, 19 F.3d 188, 191 (5th Cir. 1994) (holding that Section 2252 requires "actual knowledge or reckless disregard of a performer's minority."). The trial court specifically instructed the jury the Kimbrough had to know at least one of the persons depicted was a minor. Further instruction regarding the age of the performers would have been redundant and is not required by the statute or the case law. Had the jury believed Kimbrough's defense -- that the depictions had been altered and were not of actual children -- they could have easily found so applying the instructions as given. The jury instructions properly charged scienter with regard to the age of the performers.
Sentencing Guidelines Issues
A. Two Level Increase for Prepubescent Minor or Minors Under the Age
At trial, United States Customs Office Agent Eric Rembold testified that a listing of a file entitled "BAM Young List" had been retrieved from Kimbrough's office computer. On that list, file FAM03.GIF is described as " Eight Years Indian Girl" and file PPO4@.GIF includes the words "Preteen School Girl" in the description. Agent Rembold further testified that both FAM03.GIF and PPO4@.GIF were retrieved from computer disks obtained during the execution of the search warrants and that both had been downloaded to Kimbrough's computer from BAMSE. We find that the trial court heard sufficient evidence, even apart from that contained in the PSR, to conclude that Kimbrough intentionally ordered and possessed child pornography which depicted prepubescent minors or minors under the age of 12, or, at the very least, had reckless disregard of the age of the performers. See Burian, 19 F.3d at 191. We therefore find no clear error in the two-level enhancement pursuant to U.S.S.G. Section 2G2.2(b)(1).
B. Four Level Increase for Material Portraying Sadistic or Masochistic
At trial, Agent Rembold testified that Kimbrough had downloaded file MBON006.JPG and file MBON007.JPG from the BAMSE. He further testified that Kimbrough's computer contained file descriptions of these two files: MBON006.JPG is described as "Bound and Gagged Spread in Chair" and MBON007. JPG is described as "Same Girl Almost Same Position." The PSR stated that " Two of the child pornography pictures admitted into evidence are those of a female minor in bondage. Adult pornography possessed by the defendant also displayed sado-masochistic acts." We find that the trial court heard sufficient evidence at trial to conclude that Kimbrough intentionally ordered and possessed pornography which depicted sadistic or masochistic conduct. We therefore find no clear error in the four-level enhancement pursuant to U.S.S.G. Section 2G2.2(b)(3)(7).
C. Five Level Increase for Distribution of Obscene Material
A sentencing court must be afforded wide discretion in the sources of information it may consider. United States v. Schmeltzer, 20 F.3d 610, 613 (5th Cir.), cert. denied, __ U.S. __, 115 S. Ct. 634, 130 L. Ed. 2d 540 (1994). Therefore, Kimbrough bears the burden of demonstrating that information the trial court relied on in sentencing is "materially untrue ." See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.), cert. denied, __ U.S. __, 115 S. Ct. 180, 130 L. Ed. 2d 115 (1994); United States v. Flores, 875 F.2d 1110, 1113 (5th Cir. 1989).
At sentencing, Agent Rembold testified that he recovered evidence from Kimbrough's office computer and a back-up tape which showed Kimbrough had set up his own bulletin board system named "Unbridled, Unlimited." A bulletin board system is designed to distribute and receive files. Agent Rembold testified that Kimbrough's bulletin board system included closed files containing pornographic material depicting children. Agent Rembold also testified that the search had uncovered advertisements for "Unbridled, Unlimited" which indicated that the bulletin board was a sexually oriented bulletin board. Agent Rembold testified that he found no evidence to show Kimbrough had actually engaged in a commercial distribution of the pornography.
Kimbrough offered no evidence to rebut Agent Rembold's testimony. Under these circumstances, the sentencing court was justified in relying on the testimony and on the PSR in finding that the five-level increase was warranted.
Cumulative Effect Issue
We affirm the judgment of conviction regarding Counts One and Two. We
reverse as to Counts Three and Four and remand for the trial court to vacate
Kimbrough's conviction on either of those counts and to resentence Kimbrough
if the trial court chooses to do so. AFFIRMED IN PART AND REVERSED IN PART.
I therefore agree with the majority that the jurisdictional difference between the two sets of items in Counts 3 and 4 is insufficient by itself to support separate counts. The Government could not, for example, plead the same three items in separate counts merely because the same three had been "shipped" in interstate commerce and "produced" using materials which had been mailed or so shipped. The key, rather, is whether the items are in fact distinct and different items, regardless of whether they were " mailed," "produced," or "shipped."(8)
While it may be true that "[a] single offense should normally be charged
in one count rather than several, even if different means of committing
the offense are alleged," Sanbria v. United States, 437 U.S. 54, 66 n.20,
98 S. Ct. 2170, 2180 n.20, 57 L. Ed. 2d 43 (1978), we have held that the
act of mailing three child-pornography photographs in separate envelopes
The first two sections of the child pornography statute and the mail fraud statute speak of "any visual depiction" and "any scheme or artifice" ( or "any counterfeit or spurious coin") respectively. "Any" is synonymous with "one or more." And we have held that a prosecutor has discretion to bring a single count or several counts where there is more than one item. Why should we read the phrase "three or more" in a more restrictive manner ? Under the majority's interpretation of the statute, a prosecutor could only charge a defendant with one count under 2252(a)(4)(B) whether he possessed three books or several thousand.(10) I believe that some additional authority, in the form of legislative history or analogous case law, should be required before we assume that Congress intended to distinguish this section of the statute from the other sections by limiting the prosecutor's discretion to bring multiple counts.(11)
It is not obvious how Congress could have written this provision to make it clearer that multiple counts were permitted. It would have been confusing to omit the "or more" language from the "three" because this would seem to suggest that the possession of four or more items would not be a violation. The phrase "at least three" does not say anything different from "three or more." Nor do I believe that Congress's meaning would have been much clearer if they had stated "any three or more," even though this would have more closely paralleled the preceding provisions.( 12)
Therefore, it is more reasonable to assume that Congress simply wanted
to heighten the evidentiary burden for convictions based on the mere possession
of child pornography by requiring the Government to prove at
1. * District Judge of the Western District of Texas, sitting by designation.
2. Kimbrough relies primarily on Marcus v. Search Warrant, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961); Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed. 2d 431, (1965); Lo-Ji Sales v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979); and Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S. Ct. 916, 103 L. Ed. 2d 34 (1989).
3. Kimbrough's complaints regarding the broad seizure of his records
and other papers are best addressed in the portion of this opinion focused
on the execution of the warrants. The warrants' authorization for seizure
of "bills, correspondence, receipts, ledgers, Postal receipts and telephone
records all of which show orders and deliveries to or from any known foreign
or domestic distributer of child pornography" are certainly
4. Count 3 charges Kimbrough with
5. We decline to employ the Appellee's suggestion that the charges in
question pass the different-element test articulated in Blockburger v.
United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 2d 306
( 1932). That test applies to determinations of whether Congress intended
the same conduct to be punishable under two criminal provisions. By contrast,
Counts 3 and 4 both charge a violation of the same criminal provision.
See Sanabria v. United States, 437 U.S. 54, 70 n. 24, 98 S. Ct. 2170, 2182
n. 24, 57 L. Ed. 2d 43 (1978). That criminal provision states, in relevant
part, (B) [Any person who] knowingly possesses 3 or more books, magazines,
periodicals, films, video tapes, or other matter which contain any visual
depiction that has been mailed, or has been shipped or transported in interstate
or foreign commerce, or which was produced using materials which have been
mailed or so shipped or transported, by any means including by computer,
6. It is this language that distinguishes the offense of possession of child pornography from the offenses of transporting and receiving child pornography for purposes of the multiplicity argument. Cf. United States v. Cipollone, 951 F.2d 1057, 1058 (9th Cir. 1991).
7. Kimbrough objects to the use of adult pornography to enhance
his sentence because private possession in the home of such materials is
presumptively protected by the First Amendment. See Stanley v. Georgia,
394 U.S. 557 (1969). We need not reach the question of whether such adult
pornography can be considered for sentencing purposes as the child pornography
admitted at trial provides sufficient basis to affirm the
8. The visual depictions referred to in the separate Counts 3 and 4 appear to be ten different items. That is, the depictions listed in Count 3 "CHERRYA.GIF", "CHERRYB.GIF", "CHERRYC.GIF", "WC221501. GIF", and "LITSIS.GIF"appear to be different depictions from those listed in Count 4"MBON006.JPG", "MBON007.JPG", "DS-X-219.GIF", "INNOCNT.JPC", or " KID013.GIF". Accordingly, I believe the Government has not alleged the " same three items" in separate counts.
9. This language is quoted with approval in United States v. Cipollone, 951 F.2d 1057, 1058 (9th Cir. 1991), cited by the majority in footnote 6.
10. My research has not uncovered any case that addresses the issue of multiple counts under this provision. In every case, the prosecution apparently chose to bring only one count under 2252(a)(4)(B), even where, in one instance, the possession charge involved ten items. See United States v. Burian, 19 F.3d 188, 189-90 (5th Cir. 1994) (defendant was in possession of ten video tapes received through the mails). If the prosecution has the discretion to bring a single count even where the facts would permit several counts, these cases do not tell us very much. In the present case, the Government apparently believed, mistakenly in my opinion, that it needed to rely on a jurisdictional distinction in order to bring more than one count.
11. The legislative history contains no reference whatsoever to the language and purpose of 2252(a)(4)(B). If Congress intended to remove prosecutorial discretion under this particular section of the statute, one would expect to find some reference to this limitation.
12. Compare 18 U.S.C. 2252(a)(1) and 2252(a)(2) with 2252(a)( 4)(B).
13. Similarly, Congress would not have used the language "each three"
because this might be read to remove prosecutorial discretion, requiring
prosecutors to bring a separate count for each group of three items discovered
in the defendant's possession.
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