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United States v. Elliott

United States Court of Appeals, Tenth Circuit

September 9, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
SAMUEL ELLIOTT, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:14-CR-03822-RB-1)

          John C. Arceci (Virginia L. Grady with him on the briefs), Federal Public Defender's Office, Denver, Colorado, for Defendant-Appellant.

          Jennifer M. Rozzoni (John C. Anderson with her on the brief), United States Attorney's Office, Albuquerque, New Mexico, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, EBEL and LUCERO, Circuit Judges.

          LUCERO, CIRCUIT JUDGE.

         Samuel 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.

         I

         Execution 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, [1] 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."

         Elliott 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.

         Elliott 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.

         The 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 appealed.

         II

         The 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.

         If "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. at 84.

         Relevant 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 ...


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