from the United States District Court for the District of New
Mexico (D.C. No. 2:14-CR-03822-RB-1)
C. Arceci (Virginia L. Grady with him on the briefs), Federal
Public Defender's Office, Denver, Colorado, for
Jennifer M. Rozzoni (John C. Anderson with her on the brief),
United States Attorney's Office, Albuquerque, New Mexico,
TYMKOVICH, Chief Judge, EBEL and LUCERO, Circuit Judges.
LUCERO, CIRCUIT JUDGE.
Elliott pled guilty to three counts of producing child
pornography, in violation of 18 U.S.C. § 2251(a), and
four counts of possessing child pornography, in violation of
18 U.S.C. § 2252A(a)(5)(B). Each of the four possession
counts concerns a different electronic device or medium on
which Elliott stored his collection of child pornography. On
appeal, he argues three of the four possession counts are
multiplicitous and thus violate the Double Jeopardy Clause.
Elliott contends that because he possessed the different
electronic devices containing child pornography in the same
physical location and at the same time, he may not be
convicted of distinct possession counts for each device. To
this end, Elliott argues the rule of lenity requires a single
possession conviction because the statute is ambiguous as to
whether the unit of prosecution is a single device containing
child pornography or the simultaneous possession of multiple
devices containing child pornography. We agree that the
statute's unit of prosecution is ambiguous, and thus
conclude that the rule of lenity requires we construe §
2252A(a)(5)(B) to preclude distinct charges for each
electronic device or medium simultaneously possessed.
Exercising jurisdiction under 28 U.S.C. § 1291, we
remand to the district court with instructions to vacate
three of Elliott's possession convictions and sentences.
of a search warrant on Elliott's residence on July 24,
2013, uncovered over 8, 000 images of child pornography,
including videos of Elliott sexually assaulting three
different children, on five different devices. A federal
grand jury returned an eight-count indictment against
Elliott, charging him with three counts of producing child
pornography and five counts of possessing child pornography.
A superseding indictment charged that Elliott possessed five
separate storage devices containing child pornography: an
iPhone, a digital hard drive, a Hewlett Packard desktop
computer, an eMachines desktop computer,  and a Dropbox
storage account. Each count alleged that Elliott possessed
these devices "[o]n or about July 24, 2013, in Luna
County, in the District of New Mexico."
moved to dismiss all but one of the possession counts as
multiplicitous. This motion was denied. Also denied was
Elliott's motion to suppress the evidence obtained in the
search of his residence. In denying that motion, the district
court issued a set of factual findings, including that the
search discovered the iPhone, hard drive, and Hewlett Packard
desktop computer in Elliott's bedroom.
pled guilty. In the admission of facts contained in his
written plea agreement, Elliott acknowledged that each of the
media contained images of child pornography. Elliott reserved
the right to appeal the denial of his motion to dismiss for
multiplicity and the reasonableness of his sentence.
district court imposed a sentence of 170 years'
imprisonment, composed of 360 months' imprisonment for
each of the three production counts, to run consecutively,
and 240 months' imprisonment for each of the four
possession counts, also to run consecutively. Elliott timely
Double Jeopardy Clause "protects a defendant against
cumulative punishments for convictions on the same
offense." United States v. Benoit, 713 F.3d 1,
12 (10th Cir. 2013) (quotation omitted). "Included in
double jeopardy protections are multiple punishments for the
same offense based on the total punishment authorized by the
legislature." United States v. Jackson, 736
F.3d 953, 955 (10th Cir. 2013). "We review claims of
multiplicity de novo." Benoit, 713 F.3d at 12.
"the same statutory violation is charged twice, the
question is whether the facts underlying each count were
intended by Congress to constitute separate 'units'
of prosecution." United States v. Polouizzi,
564 F.3d 142, 154 (2d Cir. 2009). The "unit of
prosecution" is "the minimum amount of activity a
defendant must undertake, what he must do, to commit each new
and independent violation of a criminal statute."
United States v. Rentz, 777 F.3d 1105, 1109 (10th
Cir. 2015) (en banc). Determining the unit of prosecution is
"a matter of statutory interpretation."
Id. at 1109 n.4. If, after employing the usual tools
of statutory interpretation, we are left with a
"grievous ambiguity or uncertainty" concerning the
statute, we employ the rule of lenity. Muscarello v.
United States, 524 U.S. 125, 139 (1998) (quotation
omitted). As the Supreme Court instructed in Bell v.
United States, 349 U.S. 81 (1955), if "Congress
does not fix the punishment for a federal offense clearly and
without ambiguity, doubt will be resolved against turning a
single transaction into multiple offenses." Id.
provisions of the statute provide: "Any person who . . .
knowingly possesses . . . any book, magazine, periodical,
film, videotape, computer disk, or any other material that
contains an image of child pornography" shall be subject
to the criminal penalties in question. § 2252A(a)(5)(B).
We must determine whether Congress unambiguously defined the
unit of prosecution in § 2252A(a)(5)(B) as each
individual device on which the defendant stores child
pornography. We conclude that it did not. The statute of
conviction contains the ambiguous modifier "any"
preceding the enumerated list of storage materials. §
2252A(a)(5)(B). Both the Supreme Court and this ...