Rule Against Multiplicity and Child Pornography Crimes,

United States v. Buchanan, No. 04-41364 (5th Cir. 04/10/07)

18 U.S.C. § 2252(a)(2) provides:

(a) Any person who –

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(2) knowingly receives or distributes, any visual depiction that has
been mailed, or has been shipped or transported in interstate or
foreign commerce, or which contains materials which have been
mailed or so shipped or transported, by any means, including
computer, or knowingly reproduces any visual depiction for
distribution in interstate or foreign commerce or through the mails,
if –

(A) the producing of such visual depiction involves the use of a

minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct …

In 2001 Michael Joseph Buchanan was employed by the Army Corps of

Engineers as a park ranger at its Lake Texoma location. The Corps assigns a computer to
each of its park rangers who have a unique password for access. In 2001 the Texoma
station began to experience a slow internet access. Complaints were made to a Tulsa
administrator who began to monitor Buchanan’s computer. From early 2001 to August
2002, the administrator discovered that Buchanan used the Corps computer to view and
download “pornographic photographs and movies involving adults as well as bestiality”
and images of child pornography. Id., at p. 2. The administrator admonished and
suspended Buchanan for these criminal transgressions.
Finally, the administrator copied “some of the files, including both child and adult
pornography, onto a compact disc that was later turned over to law enforcement
officials.” Id., at 3. FBI Agent Wes Wheeler launched a criminal investigation into
Buchanan’s computer and “found that four large images on the CD (provided by the
administrator) depicted children from 10 to 12 years old engaged in sexually explicit
conduct.” Id.
In September 2002 Agent Wheeler met with Buchanan, showing him the CD
images. “Buchanan admitted that he had visited internet sites containing child
pornography and that he had in the past saved such images, viewed them, and later
deleted them. He said the sites he typically visited contained both adult and child
pornography.” Id.
An FBI computer forensic examiner determined that the CD provided by the
Corps administrator contained 127 images: 54 of them depicting minors from 7 to 15
years old and another 50 “thumbnail” images depicting minors but these were pictures
displayed on a web page that a viewer would have to click to access a larger, higher-
resolution photo. These were in addition to the four larger images of child pornography
discovered by Agent Wheeler on the CD. Id., at 3-4.
 This evidence prompted the FBI to do a “thorough sweep” of the hard drive of the
computer assigned to Buchanan. That sweep found “hidden” files containing more than
3,000 pornographic images, “including more than 300 images of child from 3 to 15 years
old engaged in sexually explicit conduct …” Id., at 4.
Buchanan was indicted for four separate counts of “receipt and attempt receipt of
child pornography under 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1)” – one count each for
the images retrieved from the CD provided by the administrator. Id. Buchanan was
charged in a fifth count for “possession of child pornography under 18 U.S.C. 2252(a)(4)
(A) based on eleven images found on [his] hard drive.” Id.
Buchanan was subsequently convicted by a jury trial on all five counts. He
received a sentence of 7 months on each of the first four counts and 60 months on the
fifth count, all of which were to be served concurrently. In addition, he received a $100
“special assessment” for each count and a $5,000 fine for all counts.
On appeal to the Fifth Circuit Buchanan argued that the convictions obtained from
the four counts of receipt of child pornography in the single indictment were
“multiplicitous.” The Fifth Circuit began its analysis of Buchanan’s claim by saying that
“convictions are multiplicitous when the prosecution charges ‘a single offense in more
than one count’.” Id., at 5. See also: United States v. De La Torre, 634 F.2d 792, 794 (5th
Cir. 1981). The essence of Buchanan’s claim was that the indictment did not “allege that
his receipt of the four images was the result of four separate transactions.” Id He
informed the Fifth Circuit that “the four images were automatically downloaded by the
computer he was using into temporary internet folders while he was viewing images of
adults contained on the same, single webpage.” Id
The Fifth Circuit noted that the “rule against multiplicity is grounded in the Fifth
Amendment’s prohibition against double jeopardy, intending ‘to prevent multiple
punishments for the same act’.” Id., at 6. See also: United States v. Kimbrough, 69 F.3d
723, 729 (5th Cir. 1995). The test in multiplicity cases is whether the same act or
transaction constitutes two offenses or one is determined by whether the conviction under
each statutory provision requires the proof of an additional fact that the other does not. Id.
See, United States v. Reedy, 304 F.3d 358, 363-64 (5th Cir. 2002).
The Fifth Circuit said “’where a multipart transaction raises the prospect of
multiplicity under a single statute, the question becomes ‘whether separate and distinct
prohibited acts, made punishable by law, have been committed’.” See, Reedy, supra, at
363-64 [quoting United States v. Shaid, 730 F.2d 225, 231 (5th Cir. 1984)].
Buchanan was convicted on the first four counts as four separate violations of 18
U.S.C. § 2252(a)(2). In addressing Buchanan’s multiplicity claim, the Fifth Circuit noted
that it had on two prior occasions dealt with the multiplicity issue in § 2252 cases. In
United States v. Gallardo, 915 F.2d 149 (5th Cir. 1990) the court dealt with a case
involving four counts of mailing child pornography. Gallardo had mailed three envelopes
to different locations at one time and a fourth envelope on another date. On appeal he
argued that the three counts stemming from the three envelopes mailed on the same date
should be considered one offense. The Fifth Circuit responded by saying that “each
separate use of the mail to transport or ship child pornography should constitute a
separate crime because it is the act of either transporting or shipping that is the central
focus of this statute.” Gallardo, supra, at 151.
 Buchanan’s criminal actions are clearly distinguishable from Gallardo Buchanan
had four images of child pornography taken from the CD. The government did not
establish that Buchanan received the four images on four different occasions. Gallardo
had three envelopes, each sealed and containing child pornography. That was four clearly
distinct crimes.
The other § 2252 case the Fifth Circuit dealt with was Reedy, supra. In that case
that appeals court said that since § 2252 “did not speak to the question” of “what ‘unit of
prosecution’ should apply,” the rule of lenity would govern. Id., 304 F.3d at 361. The
defendants in Reedy were convicted of multiple counts under § 2252 of transporting
depictions of minors engaged in sexually explicit conduct. Id. They operated a website
that allowed viewers to subscribe to pornographic websites. They argued that they should
have been charged with only ten counts of child pornography because there were only ten
websites that contained child pornography. The trial court had used the total number of
images appearing on all the websites as the “unit of prosecution” to determine the number
of counts in violation of § 2252. The Reedy court rejected that multiple approach, saying
“the rule of lenity require[d] resentencing based on the number of websites rather than the
number of individual images.” Id.
The Fifth Circuit in Reedy explained its reasoning by noting that “the unit of
prosecution” for a crime “is the actus reus, the physical conduct of the defendant.” Id., at
365. The issue faced in Reedy was whether a “visual depiction” is confined to an
individual image or entails a larger set of items such as books, magazines, movies, or
other collections. Id., at 366. The Fifth Circuit held that the definition provided by 18
U.S.C. § 2256 for “visual depiction” could cover an individual image or a collection of
images as in a movie or video. Absent a precise definition of “visual depiction,” the
appeals court came down on the side of lenity. The Fifth Circuit expressed “dismay” at
the government’s suggestion that it could have held the defendants in Reedy criminally
liable every a customer downloaded an image. Id, at 367.
In light of Gallardo and Reedy, the appeals court concluded in Buchanan that the
“government failed to allege or prove with regard to counts one through four that
Buchanan engaged in more than one transaction in violation of 18 U.S.C. § 2252.” Id., at
12. The court ordered four convictions under § 2252 set aside and instructed the district
court to reinstate a single count and to resentenced him accordingly on that one count. Id.,
at 14.