United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on Defendant's Motion
to Dismiss (Doc. No. 18), the Government's Response (Doc.
No. 20), the Magistrate Judge's Memorandum and
Recommendation (Doc. No. 22), and Defendant's Objections
(“Objections”) (Doc. No. 23). For the reasons
stated below, the Court adopts the Magistrate Judge's
Memorandum and Recommendation, and therefore,
DENIES Defendant's Motion to Dismiss.
to 28 U.S.C. § 636(b)(1)(B), United States Magistrate
Judge David S. Cayer was designated to consider and recommend
disposition of Defendant's Motion to Dismiss. Magistrate
Judge Cayer issued a Memorandum and Recommendation on June 3,
2019, recommending that Defendant's Motion be denied.
(Doc. No. 22 at 8). On June 17, 2019, Defendant filed
objections challenging the Memorandum and Recommendation
determinations that: (1) Transportation of Child Pornography
in violation of 18 U.S.C. § 2252A(a)(1) and Receipt of
Child Pornography in violation of 18 U.S.C. § 2252A
(a)(2)(B) are two separate offenses and (2) different files
constitute distinct conduct, such that files found on one
storage device may support both aforementioned charges even
though the conduct is alleged to have occurred on the same
day. (Doc. No. 23 at 9).
Rule of Criminal Procedure 59(a) allows a district judge to
refer to a magistrate judge for determination any matter that
does not dispose of a charge or defense. When a party objects
to a magistrate judge's order on a nondispositive matter,
a district judge must determine whether the order is contrary
to law or clearly erroneous. Fed. R. Crim. P. 53(a). A
district judge may also refer any matter that may dispose of
a charge or defense, such as a motion to dismiss an
indictment. Fed. R. Crim. P. 53(b)(1). When a party objects
to a magistrate judge's recommendation for a dispositive
matter, a district court must consider the objection de novo.
Fed. R. Crim. P. 53(b)(3).
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the report or
specific proposed findings or recommendations to which
objection is made.'” Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting 28 U.S.C. § 636(b)(1)). Where timely
objections are not filed, a district court is not required to
conduct a de novo review, but must “only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.” Id.
(quoting Fed.R.Civ.P. 72 advisory committee note) (internal
quotation omitted). Accordingly, the Court has conducted a de
novo review of the dispositive ruling on the Motion to
Dismiss and of those portions of the magistrate judge's
decision specifically objected to by Defendant.
consideration of the briefing submitted by the parties, the
Court finds, for the reasons stated in the Memorandum and
Recommendation, that because Transportation and Receipt are
two distinct offenses, and different files constitute
distinct conduct, Defendant's Double Jeopardy challenge
asserts that the Transportation and Receipt charges are the
same offense based on a plain reading of 18 U.S.C. §
2252A(a) and a Fifth Circuit case, United States v.
Planck, 493 F.3d 501 (5th Cir. 2007). Defendant contends
that, because the same statutory violation is charged twice,
the relevant inquiry becomes whether Congress intended the
facts underlying each count to make up a separate unit of
prosecution. United States v. Chipps, 410 F.3d 438,
447 (8th Cir. 2005). Next, applying a plain reading of the
statute and the rule of lenity, Defendant concludes that the
appropriate unit of prosecution should be the storage medium.
“At the very least[, ] Congress intended conduct
involving multiple images of child pornography to be punished
as a single offense.” (Doc. No. 23 at 4). Therefore,
Defendant argues, because all incriminating files were found
on a single storage device, the Government can only use the
recovered material to support a single charge.
Double Jeopardy Clause protects a person from being
“subject for the same offence [sic] to be twice put in
jeopardy of life or limb.” U.S. Const. amend. V. This
clause prohibits ‘multiplicity,' in that it
protects a person from receiving “multiple punishments
for the same offense.” Ohio v. Johnson, 467
U.S. 493, 498 (1984). “This prohibition attaches if the
subject offenses ‘are in law and in fact the same
offense.'” United States v. Schnittker,
807 F.3d 77, 81 (4th Cir. 2015) (internal citations omitted).
Eleventh Circuit clarified that Possession and Transportation
of Child Pornography are two separate offenses because they
“each required proof of a fact that the other did
not.” United States v. Little, 864 F.3d 1283,
1288 n.1 (11th Cir. 2017). “While the transportation offense
required the government to prove that [the defendant] used a
means or facility of interstate commerce . . . the possession
offense required the government to prove that [the defendant]
possessed pornography that had already been transported using
a means or facility of interstate commerce.”
Id. Similarly in the case at bar, in order to prove
Transportation, the Government must show, in relevant part,
that Defendant knowingly transported and shipped any child
pornography using any means of interstate and foreign
commerce. (Doc. No. 3 at 1). See also 18 U.S.C.
§ 2252A(a)(1). In order to prove Receipt, the Government
must show, in relevant part, that Defendant knowingly
received any child pornography that has been shipped and
transported in and affecting interstate and foreign commerce.
(Doc. No. 3 at 1). See also 18 U.S.C. §
2252A(a)(2). These two charges are distinguishable. First,
transport and receipt are two distinct types of conduct.
Second, as the Court in Little pointed out, the
Government must show that Defendant himself used a means of
interstate commerce in order to do the former, while the
Government must show that the child pornography that
Defendant received had already been exposed to interstate
commerce in the latter. Thus, Defendant's first
assignment of error is unconvincing.
second assignment of error fails by order of operation of
this Circuit's clear precedent established in
Schnittker. In Schnittker, the Court
concluded that separate, unique images may support charges of
Possession and Receipt of child pornography, provided that
“the possession conviction was based on an image the
receipt of which did not form the basis of the receipt
conviction.” Schnittker, 807 F.3d at 83
(quoting United States v. Polouizzi, 564 F.3d 142,
159 (2d. Cir. 2009). Furthermore, the Schnittker
Court emphasized the distinct image, not the storage medium,
as the factor allowing multiple charges for multiple images.
Id. at 79, 83 (“[D]ifferent images or videos
display different human beings or different sexual
activities. The images are thus in a genuine sense
distinct.”). Here, the Court finds that different
images on the same storage medium can support separate
charges of Transportation and Receipt.
IS, THEREFORE, ORDERED, that Defendant's Motion
to Dismiss (Doc. No. 18) is DENIED.
Clerk is directed to certify copies of this order to
Defendant, counsel for Defendant, and the United States