United States v. Reedy

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-11042
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
THOMAS REEDY
AND
JANICE REEDY,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________
August 26, 2002
Before JOLLY, SMITH, and DEMOSS, victions of, and sentences for, transporting
Circuit Judges. “visual depictions” of “minors engaging in sex-
ually explicit conduct,” in violation of 18
JERRY E. SMITH, Circuit Judge: U.S.C. § 2252, and transporting “child pornog-
raphy,” in violation of 18 U.S.C. § 2252A.
Thomas and Janice Reedy appeal their con- Websites specializing in child pornography
paid the Reedys a portion of their profits to volved children ranging from infants to teen-
establish a sign-on, screening, and age verifica- agers. Further investigation uncovered that
tion system for subscribers. Landslide, Inc. (“Landslide”), provided a com-
puterized credit card verification service used
The government agrees that the district by various webmasters whose websites con-
court imposed multiplicitous sentences by tained adult and child pornography. Landslide
counting each image posted as a violation of offered access under (1) the adult verification
two statutes that criminalize the same conduct. system (“AVS”) and (2) the “KeyZ” system.
Accordingly, the court should resentence using
§ 2252 for the substantive counts of transport- AVS subscribers paid $19.95, which pro-
ing visual depictions of minors engaging in vided six months’ access to all the websites
sexually explicit activity. under the AVS umbrella. The websites ac-
cessed through AVS offered adult pornogra-
The parties disagree, however, as to what phy only.
“unit of prosecution” should apply for a viola-
tion of § 2252. Because the statute does not KeyZ subscribers purchased access to spe-
speak to the question, the rule of lenity re- cific sites at $29.95 per month. Landslide re-
quires resentencing based on the number of tained a portion of the money collected, and
websites rather than the number of individual the webmasters received the rest. Under the
images. We vacate and remand for resentenc- KeyZ system, Nelson found twenty-eight web-
ing only and reject the Reedys’ other argu- sites depicting child pornography. These web-
ments. sites included Lolita Hardcore/Fucking Little
Kids, Blackcat Lolita, Children of God, Chil-
I. dren Forced to Porn, Just Grow Up, Child
In April 1999, United States Postal Inspec- Rape, Children Playground, Innocent Lolita,
tor R.C. Adams contacted Detective Steve Fantastic Site, and Special Site.
Nelson of the FBI’s Crimes Against Children
Task Force assigned to the Dallas Police De- Nelson captured information from some of
partment’s Child Exploitation Unit. Adams re- the websites by using an Internet card that per-
quested Nelson’s aid in investigating an In- mitted him to record the information onto a
ternet website named “kintamani.com,” which video cassette recorder. He also used a soft-
linked to another website named “Lolita ware package called “Web Buddy” to capture
World.” Nelson agreed to access the website the information from the websites and copy it
as part of an undercover investigation. onto the hard drive of his computer so he
could view it offline. He determined the lo-
To gain access to all the information on the cations of the websites from which the child
website, a prospective subscriber was prompt- pornography originated by using a software
ed to go to a sign-up page hosted by “KeyZ.” package called “VisualRoute.” The location
The subscriber then had to provide his or her of each image of child pornography alleged in
name, address, and a credit card number to the indictment was traced to an internet ser-
which to charge a fee of $29.95 for thirty vice provider outside Texas.
days’ access. Nelson purchased access and
found pornography on “Lolita World” that in- The Landslide and AVS homepages dis-
2
played banners, or online advertisements with $2,968,422 and that $1,290,412 of the pro-
hyperlinks, alerting potential subscribers to the ceeds came from the eleven websites named in
availability of child pornography on various the indictment.
websites. In addition, Landslide offered a free
“adult classified advertisements” section on the II.
website that showed banners advertising child The eighty-nine-count superseding indict-
pornography. On reviewing the ads, Nelson ment charged the Reedys with various offenses
found postings by persons wanting to trade arising from their participation in the transmis-
child pornography, to have sexual contact with sion of child pornography over the Internet.
children, and to trade KeyZ passwords. Count 1 charged conspiracy to transport “any
visual depiction” produced through the use of
The Reedys were the owners and operators “a minor engaging in sexually explicit con-
of Landslide, and Thomas Reedy was its duct,” in violation of § 2252(a)(1) and (b)(1).
founder. Janice Reedy held various positions Counts 2 through 44 charged the substantive
with the company beginning in January 1998, offenses of transporting and aiding and abet-
including handling its financial transactions. ting the transport of visual depictions pro-
During an interview with law enforcement duced through the use of minors engaging in
agents, Thomas Reedy admitted that he and sexually explicit conduct, in violation of
his wife knew some of the websites contained §§ 2252 and 2. Count 45 charged conspiracy
child pornography and that child pornography to commit activities relating to material con-
represented thirty to forty percent of his busi- stituting or containing child pornography in
ness. The Reedys had authored and received violation of § 2252A(a)(1) and (b)(1). Counts
emails indicating that they were aware that 46 through 88 charged committing activities
some of the websites on the KeyZ system of- relating to material constituting or containing
fered child pornography and that the Reedys child pornography and aiding and abetting in
knew the transmission of child pornography violation of §§ 2252A and 2. Count 89
was illegal. alleged possession of a computer disk and
computer material containing approximately
During a search of the Reedys’ residence in fifty images of child pornography produced by
September 1999, law enforcement agents means of a computer using material shipped
seized a desktop computer and a notebook and transported in interstate commerce, in
computer. The basis of Count 89 was sev- violation of § 2252A, which is part of the
enty-one child pornography images from the Child Pornography Prevention Act of 1996, 18
desktop computer. The police found three im- U.S.C. § 2251 et seq.
ages of child pornography on the notebook
computer. The jury found Thomas Reedy guilty on
counts 1 through 89 and Janice Reedy guilty
Landslide’s gross sales from September on counts 1 through 87. The court sentenced
1997 through August 1999 were $9,275,964; Thomas Reedy to 180 months’ consecutive
$204,025 was returned to dissatisfied custom- imprisonment on each count, plus three years’
ers. Landside incurred costs of $6,103,517. supervised release on each count, to run
Based on this information, the auditor deter- concurrently, and a special assessment of
mined that Landslide had made a profit of $8,900. His prison term would have equaled
3
1,335 years, so the court ordered that he serve other does not.” United States v. Nguyen, 28
a life sentence. F.3d 477, 482 (5th Cir. 1994) (citing United
States v. Free, 574 F.2d 1221, 1224 (5th
Janice Reedy received 168 months’ Cir.1978)). Where a multipart transaction rais-
imprisonment on each count, to run es the prospect of multiplicity under a single
concurrently, plus three years’ supervised statute, the question becomes “‘whether
release and a special assessment of $8,700. separate and distinct prohibited acts, made
Her prison term totals fourteen years. punishable by law, have been committed.’”
United States v. Shaid, 730 F.2d 225, 231 (5th
III. Cir.1984) (quoting Bins v. United States, 331
The Reedys allege that their indictment was F.2d 390, 393 (5th Cir.1964)).
multiplicitous for three reasons: (1) The in-
dictment twice charges the same conduct as B.
the transportation of materials that sexually ex- We first consider whether the government
ploit minors in violation of § 2252 and the properly charged two counts for each image
transportation of child pornography in by charging separate violations of §§ 2252 and
violation of § 2252A. (2) The indictment 2252A. The government acknowledges that it
alleged duplicative conspiracies to violate each could not properly charge a violation of both
of the two statutes. (3) The indictment and statutes for each image but argues that Thom-
the district court incorrectly viewed the as Reedy waived this argument in the district
number of pictures, rather than the number of court. A defendant must challenge the
websites, as the relevant unit of analysis under multiplicity of an indictment before trial or
§ 2252. forfeit the issue. United States v. Soape, 169
F.3d 257, 265-66 (5th Cir. 1999). He may,
A. however, raise claims about the multiplicity of
We review issues of multiplicity de novo. sentences for the first time on appeal.1 Thom-
United States v. Dupre, 117 F.3d 810, 818 as Reedy’s appellate brief repeatedly
(5th Cir.1997). “‘Multiplicity’ is the charging characterizes his challenge as one to the
of a single offense in several counts.” multiplicitous sentences, which eliminates any
1A CHARLES A. WRIGHT, FEDERAL PRACTICE possibility of waiver.2
AND PROCEDURE § 142, at 7-8 (West 3d ed.
1999) “The chief danger raised by a multi- Thomas Reedy so phrased his challenge in
plicitous indictment is the possibility that the
defendant will receive more than one sentence
1
for a single offense.” United States v. Swaim, Soape, 169 F.3d at 265-66; United States v.
757 F.2d 1530, 1537 (5th Cir.1985). Cooper, 966 F.2d 936, 940 (5th Cir. 1992). The
defendant may not challenge concurrent sentences
after waiving the multiplicity objection before trial,
Where overlapping statutory provisions
but the court imposed Thomas Reedy’s sentences
create a risk of multiplicity, “[t]he test for de- consecutively. United States v. Galvan, 949 F.2d
termining whether the same act or transaction 777, 781 (5th Cir. 1991).
constitutes two offenses or only one is whether
conviction under each statutory provision re- 2
The government does not argue that Janice
quires proof of an additional fact which the Reedy waived challenges to the multiplicity of the
indictment or the multiplicity of the sentence.
4
the district court as well. The government the Reedys without including the substantive
concedes that Janice Reedy raised these violations of § 2252A.3 The court should not
objections at trial. She objected “pursuant to consider counts 46 to 88, which are
the previously filed motion to dismiss the duplicative of the earlier-numbered counts, nor
indictment, and . . . that motion alleged that should it consider count 45, which alleges a
the indictment itself is multiplicitious.” She duplicative conspiracy to violate § 2252A.
stated that the government responded to the
challenge to the indictment by stating that it C.
would elect among the charges later, and she In determining the sentence, 4 the district
sought to remind the court of that at court used t he total number of images
sentencing. appearing on all the websites as the relevant
“unit of prosecution” for determining the num-
Thomas Reedy’s attorney joined in the ar- ber of counts for violating § 2252. The
gument by referencing the district court’s Reedys contend that the court should have
scheduling order, which permitted co- used only the number of websites.5 The
defendants to join in one another’s objections government responds that the Reedys should,
and motions. Because Thomas Reedy theoretically, bear liability for each download
consistently ratified Janice Reedy’s challenges
based on the multiplicity of the sentence, and
3
he has presented them on appeal, he has By striking down the overbroad portions of the
preserved the argument for our review. child pornography definitions, the Court made
§§ 2252 and 2252A indistinguishable. Section
On remand, the district court should resen- 2252 regulates “any visual depiction” if it
tence for each violation of § 2252 and not “involves the use of a minor engaging in sexually
explicit conduct.” § 2252(a)(1). Section 2252A
§ 2252A. Section 2252(a) criminalizes the
regulates “child pornography,” but the only
“transport” of “visual depictions” of “minors
remaining, constitutional definition of “child
engaging in sexually explicit conduct.” pornography,” 18 U.S.C. § 2256(8)(A), defines it
Sect ion 2252A(a) criminalizes the as a “visual depiction.” The district court should
transportation or distribution of “child resentence based on § 2252, to avoid additional is-
pornography.” Section 2556(8)(B)-(D) sues that might arise under § 2252A. The two
defines “child pornography” broadly to include statutes are functionally identical.
a visual depiction that “appears to be a minor
4
engaging in sexually explicit conduct,” a The government mistakenly asserts that in
“depiction” “created, adapted, or modified to their brief on appeal, the Reedys challenge the
[so] appear,” or one advertised as a visual validity only of the indictment, not the sentence.
depiction of a minor engaged in such conduct. The Reedys plainly challenge both.
18 U.S.C. § 2256(8)(B)-(D). In Ashcroft v. 5
The Reedys contend that there were 10 web-
Free Speech Coalition, 122 S. Ct. 1389, 1400- sites containing child pornography and that, ac-
01, 1406 (2002), the Court struck down this cordingly, there should have been only 10 counts
definition of “child pornography” as for violation of each of §§ 2252 and 2252A instead
overbroad. of 43 counts for each section. We leave it to the
district court, on remand, to determine how many
Accordingly, the court should resentence counts should be considered in sentencing, in
accordance with this opinion.
5
of each picture from each website on the KeyZ is determined by whether separate and
network.6 distinct acts made punishable by law
have been committed.” The principle
To determine whether the Reedys’ conduct underlying this rule is that the “unit of
gives rise to multiple convictions or prosecution” for a crime is the actus
punishments, we must, therefore, determine reus, the physical conduct of the
the “allowable unit of prosecution.” United defendant.
States v. C.I.T. Credit Corp., 344 U.S. 218,
221 (1952); United States v. Prestenbach, 230 Prestenbach, 230 F.3d at 783.7
F.3d 780, 782 (5th Cir. 2000). We begin with
the language of § 2252 to determine whether The word “transport” is fairly
it precisely delineates the criminal act. United straightforward,8 but closely examining the
States v. Dixon, 273 F.3d 636, 642 (5th Cir. meaning of “visual depiction” only complicates
2001), petition for cert. filed (Apr. 3, 2002) matters. We start by considering whether a
(No. 01-9579). “visual depiction” is neatly confined to an
individual image or encompasses a broader set
Section 2252(a) makes it a crime “know- of items, such as books, magazines, movies, or
ingly” to “ship” or “transport” in “interstate other collections.
commerce” “any visual depiction” of “a minor
engaging in sexually explicit conduct.” We Section 2256 defines a “visual depiction” as
have explained the problem posed by the use “including any photograph, film, video, pic-
of the word “any,” and our method for ture, or computer or computer-generated im-
resolving it:
Since “any” can mean “one” or “some,” 7
The word “any” has troubled many courts.
courts have determined the unit of E.g., United States v. Esch, 832 F.2d 531, 541-42
prosecution by reference to the conduct & n.9 (10th Cir. 1987). “Any” conveys multiple
alleged. Courts apply the following meanings about the necessary amount. It
rule: “Whether a transaction results in alternately may refer to “one, some, or all
the commission of one or more offenses indiscriminately of whatever quantity” or “the
maximum or whole of a number or quantity.”
W EBSTER ’ S T HIRD N EW I NTERNATIONAL
6
As the government acknowledged in response UNABRIDGED DICTIONARY 97 (Merriam-Webster
to questioning at oral argument, its position is that 1986).
a new count, potentially carrying an additional
8
prison term of 15 years, can be added every time In United States v. Runyan, 290 F.3d 223,
any subscriber downloads an image. Take, 239 & n.11 (5th Cir. 2002), for example, we in-
hypothetically, one website with 100 child terpreted “transport” in interstate commerce under
pornographic pictures. If each of 100 subscribers 18 U.S.C. § 2251’s jurisdictional requirement to
were to download each of the 100 pictures just include the “transmission of material via the In-
once, the defendant could be charged with 10,000 ternet.” We interpreted “transport” as an element
counts, for a potential sentence of 150,000 years. of the offense under § 2252A as requiring “some
Such an extreme interpretation of Congressional evidence linking the specific images supporting the
intent undermines the reliability and credibility of conviction to the Internet.” Id. at 242. Neither
the government’s case on appeal. definition adds much to the current inquiry.
6
age or picture, whether made or produced by of § 2252 fails to resolve the question, so we
electronic, mechanical, or other means.” 18 turn to our one precedent interpreting related
U.S.C. § 2256(5). This list includes both issues under that section.11
items that may be classified as a single shot of
a single scene, such as a still photograph, and In United States v. Gallardo, 915 F.2d 149,
series of shots of several scenes or ongoing ac- 150 (5th Cir. 1990), the defendant mailed four
tion, such as a film or video. The statute con- envelopes addressed to four persons in various
templates “visual depictions” as constituting locations, and argued that because he mailed
both single images and more than one image. three envelopes at the same time, the court
should consider them as a single count. In a
Other portions of § 2252 demonstrate that passage on which both sides focus here, we
Congress recognized that a “visual depiction” held that the three envelopes should count as
might include one or several images. Section three, and only three, counts:
2252(a)(4)(B) forbids the possession of
“books, magazines, periodicals, films, video [E]ach separate use of the mail to
tapes, or other matter which contain any visual transport or ship child pornography
depiction” sent through interstate commerce.9 should constitute a separate crime
And § 2252(c)(1) creates an affirmative because it is the act of either
defense for persons possessing “less than three transporting or shipping that is the
matters containing any visual depiction.”
These references tell us that a “matter” is 10
larger and inclusive of a “visual depiction,” but (...continued)
they do not explain the size or inclusiveness of Cir. 1999) (holding individual files count as “other
matter”) with United States v. Lacy, 119 F.3d 742,
a “visual depiction.”10 Standing alone, the text
748 (9th Cir. 1997) (holding that computer files
are not “other matter,” but a hard drive and floppy
disc are).
9
In the course of resolving a separate statutory
11
interpretation question, the Eighth Circuit, at least, Other jurisdictions have addressed similar but
has classified a video tape as a “visual depiction”. not identical questions, and their opinions shed only
United States v. Broyles, 37 F.3d 1314, 1317 (8th limited light on the question before us. E.g.,
Cir. 1994). United States v. Thompson, 281 F.3d 1088, 1091,
1097-98 (10th Cir. 2002) (interpreting U.S.S.G.
10
The First Circuit has held that a single § 2G2.4(b)(2)’s use of the word “item” to refer to
negative strip with three undeveloped photos is one individual computer files and not discs); United
“matter.” United States v. McKelvey, 203 F.3d States v. Matthews, 11 F. Supp. 2d 656, 659 (D.
66, 71 (1st Cir. 2000). The Second Circuit Md. 1998) (holding that a single email
invoked the rule of lenity to hold that several in- transmission should establish a single count), aff’d,
dividual loose pictures removed from a magazine 209 F.3d 338 (4th Cir. 2000); United States v.
do not count as a “matter.” United States v. Meyer, 602 F. Supp. 1480, 1481 (S.D. Cal. 1985)
Dauray, 215 F.3d 257, 264-65 (2d Cir. 2000). (invoking rule of lenity to hold that a person could
not face two counts for sending and receiving the
Courts have divided over whether individual same picture); United States v. Labean, 56 M.J.
graphic computer files count as a “matter.” Com- 587, 590 (C.G. Ct. Crim. App. 2001) (holding that
pare United States v. Vig, 167 F.3d 443, 448 (8th downloading 25 separate pictures from a single
(continued...) website in 18 minutes established 25 counts).
7
central focus of this statute. Gallardo We are faced, then, with what to do where,
mailed four separate envelopes as here, a criminal statute fails to provide an
containing child pornography, thus com- answer to a question.12 The Supreme Court
mitting four separate acts of provided the answer almost fifty years ago
transporting or shipping. The number of when faced with this interpretive dilemma. In
photographs in each envelope is Bell v. United States, 349 U.S. 81, 82 (1955),
irrelevant. In contrast, a defendant the Court considered whether the Mann Act’s
arrested with one binder containing prohibition against knowingly transporting
numerous photographs has committed “any woman or girl” in interstate commerce
only one act of transportation. for an immoral purpose supported two counts
Similarly, a single transportation of two for transporting two women at the same time
women is but one violation of the Mann in the same vehicle. The Court reached the
Act. same impasse that we have reached today.
Because “argumentative skill” “could
Id. at 151 (citation omitted). persuasively and not unreasonably reach”
either interpretation, the Court ruled that the
The government emphasizes that we parsed “ambiguity should be resolved in favor of
the placing of the three envelopes into the lenity,” and the government could charge only
mail. The Reedys highlight that we permitted one count. Id. at 83.13 We reach the same
only one count for each envelope and labeled
improper an attempt to charge the defendants 12
for each picture contained in the envelope. The legislative history is not particularly
Gallardo is not especially similar to the instant helpful; neither is a restatement of the statute’s
purpose. Obviously, Congress sought to prevent
case, so we take from it only a single pro-
the abuse and exploitation of children and to dis-
position: Where a defendant has a single
courage the secondary market that fosters that
envelope or book or magazine containing abuse. Reciting the purpose of a criminal law,
many images of minors engaging in sexual ac- however, provides no information about the level at
tivity, the government often should charge which Congress chose to set the penalties. Pre-
only a single count. sumably that purpose was not limitless, or
Congress would have established life sentences for
Consider the Reedys’ actions: They each violation of the statute. Neither the legislative
established a security screening device that history nor the purpose is fine-grained enough to
aided and abetted the website operators who resolve the question before us.
purveyed child pornography. The Reedys 13
chose to bundle their service by website; they We invoke the rule of lenity only where “a
charged for subscriptions to individual web- reasonable doubt persists about a statute’s intended
scope even after resort to the language and
sites under the KeyZ plan. As the defendant in
structure, legislative history, and motivating poli-
Gallardo chose to collect several pictures in cies of the statute.” Moskal v. United States, 498
an envelope, or the publisher of a magazine of U.S. 103, 108 (1990). Despite its status as a tool
child pornography chooses to collect several of last resort, this principle has a long and
images in a periodical, the Reedys chose to established history in the Supreme Court and this
bundle in this manner. Gallardo cuts slightly circuit. Where, after seizing everything from
in favor of the Reedys’ interpretation. which aid can be derived, the statute remains am-
(continued...)
8
conclusion here and decide that the district for abuse of discretion. United States v.
court erred by permitting the prosecution to Young, 282 F.3d 349, 353 (5th Cir. 2002). A
group the counts by individual image rather conviction will be reversed only if the charge
than website.14 “as a whole leaves us with substantial and in-
eradicable doubt as to whether the jury has
IV. been properly guided in its deliberations.”
The Reedys raise two challenges to the jury Bender v. Brumley, 1 F.3d 271, 276 (5th Cir.
instructions: (1) The instructions reflected the 1993) (citation and internal quotation
multiplicitous counts and biased the jury by omitted). Even if the instructions are
making the defendants appear twice as guilty. erroneous, we will not reverse if we determine,
(2) Thomas Reedy argues that the court “based upon the entire record, that the
erroneously instructed the jury that it only challenged instruction could not have affected
need find he possessed one “visual depiction” the outcome of the case.” Johnson v. Sawyer,
under count 89. We review each in turn. 120 F.3d 1307, 1315 (5th Cir.1997).
A. B.
We review challenges to jury instructions The Reedys argue that including
instructions on multiplicitous counts allowed
the jury to find them guilty on counts deemed
13
(...continued) unconstitutional under the Double Jeopardy
biguous, the rule of lenity may be applied. Adamo Clause of the Fifth Amendment. The Reedys
Wrecking Co. v. United States, 434 U.S. 275, reason that these instructions prejudiced the
284-285 (1978) (“[W]here there is ambiguity in a jury on all counts included in the indictment by
criminal statute, doubts are resolved in favor of the
making the Reedys “appear two times guiltier,
defendant.”); Rewis v. United States, 401 U.S.
with twice the opportunity for the jury to find
808, 812, (1971) (“[A]mbiguity concerning the
ambit of criminal statutes should be resolved in guilt.”
favor of lenity.”); Prestenbach, 230 F.3d at 784
n.23 (“If uncertainty remains after our The government argues that dismissing the
interpretation of the text and its underlying multiplicitous counts would render any jury
policies, the rule of lenity requires a narrow error harmless, because the court expressly
construction of the law.”). instructed the jury to consider guilt on each
count separately. The relevant jury
14
We emphasize that this case is limited to a instructions provided:
security screening system that aggregates websites
containing child pornography. We do not intimate A separate crime is charged in each
a particular result where a website operator uses a count of the indictment. Each count and
single site to aggregate and distribute individual
the evidence pertaining to that count
pictures. We are particularly loath so to hint, be-
cause child pornographers merely could change
should be considered separately and in-
their distribution methods if we announced a dividually. The fact that you may find
bright-line rule. We conclude only, on the facts of the defendant under consideration guilty
this unique case involving a middleman and se- or not guilty as to one or more counts
curity screening system, that the court cannot should not control your verdict as to any
sentence the Reedys based on each individual other count.
picture posted.
9
Juries are presumed to follow instructions. 986, 900 (5th Cir. 1980), but failed to raise the
See, e.g., Richardson v. Marsh, 481 U.S. 200, defense or object to the instruction.16 The
206 (1987) (collecting cases). The above in- court did not have an obligation to instruct on
struction should have prevented the a non-element of the crime or on an affirmative
multiplicative indictment from influencing the defense never presented.
verdict on the valid counts. Id.; see also
Dixon; United States v. Kimbrough, 69 F.3d V.
723, 732 (5th Cir. 1995). A remand for The Reedys raise three objections to the
resentencing will cure all error. sentence: (1) The relevant conduct
calculations erroneously included revenue
C. from both child pornography and (legal) adult
Thomas Reedy argues that the jury pornography. (2) Thomas Reedy did not play
instruction on count 89 permitted the jury to a leadership role in the offense. (3) The court
convict on findings shy of what § failed to resolve all the sentencing objections.
2252A(a)(5)(b) requires.15 The instruction on
count 89 stated that the jury had to find that A.
“the defendant under consideration knowingly We review the application of sentencing
possessed at least one visual depiction guidlelines de novo but findings of fact for
containing an image or images of child clear error. United States v. Taylor, 277 F.3d
pornography.” Thomas Reedy argues that § 721, 723 (5th Cir. 2001). A factual finding is
2252A(d), which creates an affirmative not clearly erroneous if it is plausible in light of
defense to a charge of violating § 2252A- the record as a whole. United States v. Myers,
(a)(5), requires finding that he possessed at 198 F.3d 160, 164 (5th Cir. 1999). We review
least three images of child pornography. the application of FED. R. CRIM. P. 32(c) de
According to Thomas Reedy, he possessed novo. United States v. Medina, 161 F.3d 867,
only one itemSSa computer disc drive. 874 (5th Cir. 1998).
Section 2252A(d) expressly states, B.
however, that it is an affirmative defense. See The Reedys contend that the auditor
United States v. Henriques, 234 F.3d 263, 264 incorrectly established their pecuniary gain as
n.2 (5th Cir. 2000) (stating that § 2252A(d) $5,792,475.15, because this figure includes
“gives the defendant an affirmative defense money generated from legal pornographic
upon a showing that the defendant possessed websites. The Reedys argue that only
fewer than three images”). Reedy bore the $1,290,412, which was earned from the web-
burden of raising and pleading the affirmative sites contained in the indictment, should be
defense, United States v. Elorduy, 612 F.2d considered for establishing the sentencing en-
15 16
We do not find it necessary to vacate and “No party may assign as error any portion of
remand under this count for possession under the charge or omission therefrom unless the party
§ 2252A. In Free Speech Coalition, 122 S. Ct. at objects thereto before the jury retires to consider its
1406, the Court merely restricted convictions under verdict, stating distinctly the matter to which that
§ 2252A to those the government previously could party objects and the grounds of the objection.”
have obtained under § 2252. FED. R. CRIM. P. 30.
10
hancement under U.S.S.G. § 2F1.1(b)(1)(O). one offense level. The government answers
The government responds the district court did that Reedy qualified because his criminal
not include revenues from the adult enterprise involved more than five participants.
pornography websites in its calculation but
merely considered revenues from other child Under § 3B1.1(a), the offense level may be
pornography sites. increased by four “if the defendant was an or-
ganizer or leader of a criminal activity that
Relevant conduct for which a defendant involved five or more participants or was
was not charged or convicted may be otherwise extensive.” According to
considered in determining the guideline range. application note 4, the sentencing court should
See United States v. Taplette, 872 F.2d 101, consider
104 (5th Cir. 1989). According to U.S.S.G.
§ 1B1.3(a)(2), relevant conduct may be based the exercise of decision making
on “all acts and omissions . . . that were part of authority, the nature of the participation
the same course of conduct or common in the commission of the offense, the
scheme or plan as to the offense of recruitment of accomplices, the claimed
conviction.” right to a larger share of the fruits of the
crime, the degree of participation in
The $5,792,475.15 represented the total planning or organizing the offense, the
amount of pecuniary gain from all the child nature and scope of the illegal activity,
pornography websites for which Landslide and the degree of control and authority
operated its credit card verification system. exercise over others.
The auditor testified that his analysis of
Landslide's financial records showed U.S.S.G. § 3B1.1, commen. (n. 4).
$1,290,412 as the total proceeds from the
websites named in the indictment. During the Reedy quotes Assistant United States At-
sentencing process, however, a second torney Terri Moore’s opening statement to the
government auditor conducted an audit of jury that “. . . subscribers or users . . . needed
KeyZ’s financial records and determined that a middleman, that's where [Appellants] come
Landslide had earned $5,792,475.15 from all in. They are a middleman.” Marshall also tes-
the websites containing child pornography for tified that “on the Internet, there’s a large
which it provided a credit card verification group of customers, there’s a large group of
system. The court properly considered those child pornography sites, and in the middle is
sums when establishing the enhancement. landslide/keyz.com basically being the
gatekeeper between those two components.”
C.
Thomas Reedy argues that the district court The government notes that under
wrongfully found him to be a leader/organizer § 3B1.1(a), a defendant should receive a four-
of criminal activity, resulting in a four-level level enhancement if he was an organizer or
enhancement under U.S.S.G. § 3B1.1(a). leader of a criminal activity that involved five
Reedy contends that he was only a or more participants or was otherwise
“middleman,” so his total offense level under extensive. The presentence report (“PSR”)
U.S.S.G. § 3B1.1(b) should be decreased by sets forth the following in support of the
11
recommendation that Thomas Reedy be The Reedys argue that the district court er-
considered a leader/organizer: roneously permitted the presentation of
additional evidence. They contend that their
[T]his case involved a sophisticated, in- counsel “meticulously delineated additional
ternational child pornography scheme objections to the PSR as having significant
which earned in excess of $9,000,000. impact” but that the court “blatantly skirted
The superseding Indictment in this case past the specific objections without expressly
identified five participants in the ruling on them nor making finding of fact and
conspiracy, including [Thomas Reedy], conclusions of law in accordance with Rule
Janice Reedy, R.W. Kusuma, Boris 32(c)(1) of the Federal Rules of Criminal
Greenberg, and Hanny Ingganata . . . . Procedure.” Significantly, they do not explain
[Thomas Reedy] held the position of what objections were made during sentencing.
president within his company and
directed the employees identified in Thomas Reedy made two objections to the
paragraph 36. He also developed and PSR: (1) to the amount of revenue or
implemented the services used to mass- pecuniary gain and (2) to the four-level
market the child pornography. For increase for his management role in the
these reasons, the 4 level enhancement offense. Janice Reedy objected to the revenue
for being an organizer or leader of a calculations, to a two-level increase for
criminal activity that involved five or obstruction of justice, and to the denial of a re-
more participants or was otherwise duction for her minimal role in the offense. In
extensive is warranted in this case. each of the sentencing hearings, the court ei-
ther overruled or sustained every objection
No one challenges the following facts: made by the Reedys and adopted the factual
(1) The criminal activity involved at least five findings in the PSR. The court sustained
knowing participants. (2) The crime involved Janice Reedy’s objection to the obstruction of
the transportation, for remuneration, of child justice two-level increase and granted a four-
pornography all over the world via the Inter- level decrease for her minimal role in the
net. (3) Thomas Reedy ran the operation: He offense.
developed and implemented the KeyZ service
for the purpose of mass marketing child After overruling Janice Reedy’s objection
pornography to interested subscribers; he to the pecuniary gain calculation, the court
actively recruited Webmasters to utilize KeyZ asked her whether she had any objection or
by promising increased profits by tracking evidence to offer regarding the court’s
subscribers interested in child pornography; if tentative findings. She answered in the
a webmaster failed to follow the rules negative. Therefore, the court adopted the
established by Thomas Reedy for KeyZ, Reedy statements of fact made in the PSR as its final
determined whether the Webmaster would be findings of fact, subject to and including
cut off from the system. The district court had changes and qualifications made by the court
ample evidence to dub Reedy a leader or in response to the objections as announced.
organizer. We cannot identify any issues the court failed
to resolve at sentencing.
D.
12
VI. the State of Texas during the trial. Marshall
The Reedys aver that they should receive a testified about his background and
new trial for two reasons: (1) They have employment as a police officer for the City of
uncovered evidence that impeaches a Fort Worth in the early 1980’s. He also
prosecution witness. (2) The cumulative testified that he suggested that Nelson use the
errors in the indictment and trial require a new software program called Web Buddy to record
adjudication of guilt. We review for abuse of the child pornography websites. In addition,
discretion the denial of a new t rial based on Marshall testified that he suggested, installed,
newly discovered evidence. United States v. and helped configure the software program
Metz, 652 F.2d 478, 479 (5th Cir. Unit A Aug. called VisualRout e and the device used to
1981).17 videotape the child pornography images from
the Internet.
A.
After trial and before sentencing, the Marshall explained how VisualRoute
government discovered that Marshall, its worked and how the origination points for the
expert, had failed to disclose that he had been websites demonstrated an impact on interstate
asked to resign from the Fort Worth Police and foreign commerce. Thus, most of
Department because of misconduct, and Marshall’s testimony centered on explaining
Thomas Reedy’s trial counsel had represented the Internet. On cross-examination, Thomas
him in an unrelated proceeding years before Reedy’s defense counsel stated to Marshall:
the instant offense. The government notified “[A]pparently we ran into one another when I
trial counsel, who claimed no recollection of was a prosecutor or something, because you
having represented Marshall. The Reedys’ recall me.” Marshall’s response was “Yes, sir,
counsel then filed a Motion To File Motion to I do.” Marshall’s direct and redirect testimony
Withdraw Under Seal and Counsel’s Motion covered approximately 13.5 pages of the rec-
To Withdraw and Request To Present ord, and his cross-examination testimony cov-
Supporting Evidence Ex Parte. The court ered almost 35 pages. The Reedys claim that
granted the request to withdraw. the evidence on the witness’s relationship with
their attorney should have been further
The new defense counsel filed motions for developed.
new trial on the ground that such newly
discovered evidence could have been used to For a new trial on the basis of newly
impeach Marshall and demonstrated an discovered evidence, a defendant must
irreconcilable conflict of interest between demonstrate that
Reedy and his trial counsel. The court denied
both motions. (1) the evidence is newly discovered and
was unknown to the defendant at the
Marshall was the Chief Investigator for the time of trial; (2) failure to detect the ev-
Internet Bureau of the Attorney General for idence was not due to a lack of diligence
by the defendant; (3) the evidence is not
merely cumulative or impeaching; (4)
17
Refusal of a hearing on a motion for new trial the evidence is material; and (5) the
is also reviewed for abuse of discretion. Metz, 652 evidence introduced at a new trial would
F.2d at 481.
13
probably produce an acquittal.
United States v. Lowder, 148 F.3d 548, 551
(5th Cir. 1998) (citation omitted). The Reedys
have not pointed to any evidence that they
would be likely to win an acquittal at a new
trial. Marshall’s testimony was generic, expert
testimony, and the government could always
replace him with another expert. He had to
testify only about the operation of the Internet,
not the age of the girls, because the Reedys
conceded, in a police interview, knowledge of
illegal child pornography on the websites.
The Reedys do not point to portions of
Marshall’s testimony that were false, biased, or
even material. Nor do they provide any evi-
dence that their counsel was biased by his past
representation of Marshall. They do not allege
that he failed to cross-examine Marshall
thoroughly. And because Marshall said little
of significance, a stronger cross-examination
would not have led to an acquittal.
B.
The Reedys argue that the cumulative er-
rors throughout their trial warrant a new trial.
We have not found quite as many errors as the
Reedys allegedSSin fact, we reverse only on
multiplicity grounds. “Although the
‘cumulative effect of several incidents . . . may
require reversal, even though no single one . .
. co nsidered alone would warrant such a
result,’ this situation is a rarity.” United States
v. Lindell, 881 F.2d 1313, 1327 (5th Cir.
1989) (internal citation omitted). The instant
case does not qualify.
The judgments of sentence are VACATED,
and this matter is REMANDED for resentenc-
ing.
14