Court: Court of Appeals for the Fifth Circuit; December 28, 1995; Federal Appellate Court
Terry Burton Kimbrough appeals his convictions related to child pornography, specifically for two counts of receipt and two counts of possession under Title 18 U.S.C. Sections 2252(a)(2) and 2252(a)(4)(B). The investigation began in 1992 when the United States Customs Service (USSC) discovered a Danish bulletin board system (BBS) involved in distributing child pornography. Kimbrough was identified as a subscriber who downloaded child pornography from this BBS. Following a three-day training session for agents on the investigation techniques, USSC agents executed search warrants at Kimbrough's home and business in March 1993, seizing various items including computers and child pornography. Kimbrough was indicted on multiple counts, including counts for knowingly receiving and possessing child pornography, but the government later dropped three counts related to the transportation of obscene material. The court affirmed some convictions while reversing others.
Kimbrough was convicted on four counts and sentenced to 72 months for Counts 1 and 2, and 60 months for Counts 3 and 4, with all sentences running concurrently. He argued that the search warrants were unconstitutional due to insufficient specificity, claiming they targeted items considered 'presumptively protected speech.' The warrants included a wide range of items such as tapes, software, computer hardware, visual depictions of minors in sexually explicit conduct, and various records related to child pornography distribution.
The Fourth Amendment requires warrants to specifically describe the items to be seized, prohibiting general warrants that allow broad searches. Courts must determine if an executing officer can reasonably identify the items based on the warrant's description. While generic language can be acceptable if it specifies types of items, heightened particularity is required for materials potentially protected by the First Amendment.
The court found the warrants adequately detailed, limiting officer discretion by clearly defining the items to be seized. Kimbrough's comparisons to obscenity cases were deemed irrelevant, as the identification of visual depictions of minors engaging in sexually explicit conduct is factual and does not rely on officer discretion. The court concluded that Kimbrough's argument lacked merit.
Kimbrough argues that even if the warrants were valid, their execution was illegal due to the indiscriminate seizure of all records, documents, and audio/video tapes at the premises. The Government counters that the seizure was justified, as the content of the tapes could not be determined without thorough examination, as testified by Agent Johnson during the suppression hearing. Case law indicates that a blatant disregard for the search warrant’s specifics can render a search invalid, necessitating evidence suppression. Despite this, Kimbrough has not sufficiently proven that the search execution was improper. The officers' decision not to inspect each item on-site does not invalidate the search, especially since many documents deemed irrelevant were left behind. Kimbrough failed to identify specific items that would indicate a lack of good faith in the seizure process, rendering this argument unmeritorious.
Additionally, Kimbrough challenges the multiplicity of Counts 3 and 4 in the indictment, asserting they should be dismissed or the Government should choose one count to pursue. The principle against multiplicity, rooted in the 5th Amendment, prevents multiple charges for a single offense to avoid double jeopardy. Kimbrough raised this issue before trial and during his motion for judgment of acquittal, both of which were denied by the trial court.
The Appellee argues that the trial court's grouping of offenses under the Sentencing Guidelines eliminates concerns of multiple punishments, claiming that this grouping prevents violations of the Fifth and Eighth Amendments. However, the Court clarifies that concurrent sentences do not negate double jeopardy if separate mandatory special assessments are imposed for each conviction, as established in United States v. Berry. Kimbrough's sentence included such assessments for each count, and Supreme Court precedent indicates that separate convictions can have adverse consequences, regardless of concurrent sentencing.
Furthermore, the Appellee claims that the materials in Counts 3 and 4 are distinct because Count 3 involves items transported in interstate commerce, while Count 4 relates to items produced using those materials. The Court finds this distinction artificial, as both counts involve possession of "three or more" items that traveled in commerce and were produced using interstate materials. Both counts charge violations of the same statute occurring on the same date. The only difference cited relates to jurisdictional elements, which the Court deems an unlawful attempt to fragment a single offense into multiple counts.
The Court emphasizes the necessity of deferring to legislative intent regarding whether specific conduct constitutes separate crimes and highlights that the statute's plain language suggests that multiple charges for a single offense are not intended. In cases of statutory ambiguity, the rule of lenity favors the accused, leading the Court to conclude that Counts 3 and 4 are multiplicitous. Consequently, the trial court is directed to vacate Kimbrough's conviction on either Count 3 or Count 4.
Kimbrough contends that his conviction should be reversed due to a multiplicitous indictment, arguing that the jury may have been confused by repeated details related to two counts, potentially leading them to believe multiple crimes occurred. However, the trial court's instruction for the jury to consider each count separately mitigated this concern, and Kimbrough failed to present specific evidence of jury confusion that would constitute a constitutional violation.
Additionally, Kimbrough claims that the government's refusal to allow him to copy evidence related to the indictment violated his constitutional rights to due process and effective counsel. On September 10, 1993, the trial court granted his discovery motion in accordance with Federal Rule of Criminal Procedure 16 and relevant case law. Despite this, the government denied Kimbrough's requests to copy charged items, specifically child pornography, which is considered illegal contraband. The government offered alternatives for inspecting the evidence, which the court found reasonable. Kimbrough's motions to dismiss counts based on these refusals were denied, and he did not demonstrate any actual prejudice from not being able to copy the materials.
Kimbrough's claim of inadequate trial preparation due to the volume of seized materials and the time taken by government agents to review these materials is insufficient to demonstrate a violation of his constitutional rights. The court noted that the government’s task of assembling evidence is distinct from the defendant's preparation for trial. Kimbrough's assertion of prejudice from technical violations of Rule 16 was dismissed as lacking merit.
Kimbrough argued he was denied a fair trial because he could not adequately prepare for trial and because the court admitted numerous government exhibits that were only listed on the day of trial. The denial of a continuance is evaluated for abuse of discretion and requires the defendant to show serious prejudice. Kimbrough filed for a continuance a month before trial, citing a lack of access to the charged materials, but the court denied this motion without explanation.
On the morning of trial, the government submitted an amended exhibit list that significantly expanded the number of exhibits. Kimbrough objected to this, claiming it hindered his defense, but the court ruled that objections could be handled on an item-by-item basis during the trial. Despite acknowledging that meaningful access to exhibits is important, the court found Kimbrough did not demonstrate serious prejudice, as he had two weeks' notice to review the materials. His claims were deemed conclusory and insufficient to prove he was denied a fair opportunity to prepare, especially given that the defense did not necessitate a detailed review of every document. Any errors were deemed harmless.
Kimbrough's request for continuance was denied by the trial court, which he claims hindered his defense due to his inability to consult experts and analyze seized computer files. However, he failed to demonstrate how these actions were directly linked to the trial court's decision or to his right to a fair trial, rendering his argument meritless. Regarding the Government's amended exhibit list, which added two pieces of evidence for rebuttal, Kimbrough did not successfully counter the Government's position that these additions were necessary, leading to a finding that he was not unfairly prejudiced by the exhibits.
Kimbrough also challenged the constitutionality of Title 18 U.S.C. Section 2252, arguing it lacked a scienter requirement for the age of minors, referencing a Ninth Circuit ruling. However, the Supreme Court has since affirmed that the statute is constitutional, as the term "knowingly" applies to both the nature of the material and the age of the performers, thus invalidating his claims regarding Counts 1, 2, 3, and 4.
On the issue of jury instructions, Kimbrough contended that the instructions failed to clarify the Government's burden of proving mens rea for each offense element. The jury was instructed on the necessary criteria for finding Kimbrough guilty under Section 2252, including the requirement that he knowingly received visual depictions involving minors. Kimbrough argued that the jury should have been explicitly told that it must find he knew a minor was involved in the production of the depictions, but this assertion was not supported by the provided instructions.
The Supreme Court in X-Citement Video, Inc. held that the term 'knowingly' in Section 2252(a)(1) and (a)(2) encompasses awareness of both the sexually explicit nature of materials and the age of the performers. The Fifth Circuit's ruling in United States v. Burian establishes that Section 2252 necessitates either actual knowledge or reckless disregard regarding a performer's minority. The trial court's jury instructions required that Kimbrough must have known at least one depicted individual was a minor; additional instructions on age were deemed unnecessary. The jury could have accepted Kimbrough's defense regarding altered depictions if they found it credible based on the provided instructions.
Kimbrough challenged three aspects of his Presentence Report (PSR) affecting his sentencing guidelines, with a standard review of factual findings for clear error and legal conclusions de novo. The PSR's recommendation for a two-level increase due to materials involving prepubescent minors was contested by Kimbrough, claiming insufficient evidence of intent. However, evidence presented at trial indicated that Kimbrough had files on his computer specifically referencing minors, supporting the trial court's conclusion of either intentional possession or reckless disregard for the age of the performers, thus justifying the enhancement.
Additionally, Kimbrough objected to a four-level increase for materials depicting sadistic or masochistic conduct, asserting that the contents did not portray such themes and questioning the evidence of his intent to receive such materials.
Agent Rembold testified at trial that Kimbrough downloaded two specific files, MBON006.JPG and MBON007.JPG, from BAMSE, which were described as depicting a female minor in bondage. The Presentence Report (PSR) noted that these images were part of child pornography and that Kimbrough also possessed adult pornography showcasing sadomasochistic acts. The court found sufficient evidence to conclude that Kimbrough intentionally ordered and possessed such pornography, supporting the four-level enhancement under U.S.S.G. Section 2G2.2(b)(3).
Kimbrough contested a five-level increase at sentencing for the intent to distribute child pornography, as recommended by the PSR under U.S.S.G. Section 2G2.2(b)(2), arguing lack of evidence for intent to distribute. The court emphasized that it has broad discretion in considering information for sentencing and that Kimbrough must prove any relied-upon information was materially false. Agent Rembold testified that Kimbrough had created a bulletin board system named "Unbridled, Unlimited" designed for file distribution, which included closed files with child pornography. Although no evidence of commercial distribution was found, Kimbrough did not contest Rembold's testimony. Thus, the sentencing court was justified in applying the five-level increase.
Kimbrough also claimed that the cumulative effect of alleged errors warranted a reversal of his conviction. However, other than a multiplicitous argument, his claims were deemed meritless, as they merely reiterated previously rejected arguments without demonstrating how they prejudiced him. The court affirmed the conviction on Counts One and Two, reversed on Counts Three and Four, and remanded for potential resentencing on those counts.
Judge Emilio M. Garza concurred in part but dissented regarding the "Multiplicitous Counts Issue," expressing skepticism about the majority's interpretation of the statute's language concerning charging multiple offenses.
Section 2252(a)(4)(B) outlines the crime of possession of child pornography, requiring that a person knowingly possesses three or more items depicting such material. Each item must meet one of three jurisdictional criteria under the Commerce Clause: it must have been mailed, shipped, or transported in interstate or foreign commerce, or produced from an item that has been so mailed or transported. The statute emphasizes that the jurisdictional requirements do not alter the essence of the crime, which remains possession of child pornography.
The document addresses the permissibility of charging multiple counts for separate acts of possession or transportation, citing case law that supports the notion that each separate act constitutes a distinct offense. Specifically, it references the precedent that mailing three photographs in separate envelopes can lead to three separate charges, reinforcing that each act of transporting or shipping child pornography is a focus of the statute.
Furthermore, it argues against a restrictive interpretation of the phrase "three or more," suggesting that a prosecutor should have the discretion to bring multiple counts for possession of multiple items. The discussion indicates that the legislative language is intentionally broad to allow for such flexibility in prosecution, and questions the clarity of Congress's intent if it were to limit the prosecutor's ability to charge multiple counts based on the number of items possessed. The phrasing "three or more" is argued to be consistent with allowing multiple charges, and it is suggested that any potential ambiguity in congressional intent should not restrict prosecutorial discretion.
Congress intended to increase the evidentiary burden for child pornography convictions by requiring the government to prove at least three distinct items for possession cases. However, this does not eliminate the prosecutor's discretion to bring additional counts when more than three items are involved, as long as each count is substantiated by three separate items. The inclusion of "or more" language supports prosecutorial discretion, permitting charges for multiple items as either a single count or multiple counts. Counts 3 and 4 are deemed sufficient not due to differing jurisdictional grounds but because they each involve at least three distinct items.
Additionally, Kimbrough's objections regarding the seizure of records are addressed within the context of warrant execution. The warrants allowed for the seizure of specific materials related to the distribution of child pornography, which are sufficiently detailed to meet legal standards. Cited precedents confirm that such warrants do not infringe upon First Amendment rights when they target evidentiary materials rather than ideas. Count 3 specifically charges Kimbrough with knowingly possessing three or more items containing visual depictions involving a minor in sexually explicit conduct, in violation of Title 18, United States Code, Section 2252(a)(4)(B) and 2.
Possession of three or more visual depictions produced using materials transported in interstate or foreign commerce, involving a minor in sexually explicit conduct, violates Title 18 U.S.C. Sections 2252(a)(4)(B) and 2. The court declined to apply the Blockburger test regarding whether the same conduct can be punished under two provisions, as both counts charged violations of the same provision. The law specifies that knowingly possessing three or more items that contain such visual depictions is an offense. The distinction between possession and other offenses, such as transporting and receiving child pornography, is crucial for multiplicity arguments. In this case, the items referenced in Counts 3 and 4 are different depictions, which the government failed to acknowledge. Moreover, the legislative history does not indicate intent to limit prosecutorial discretion under Section 2252(a)(4)(B). The majority opinion noted that previous cases typically involved a single count, even when multiple items were present, suggesting that the government may have incorrectly assumed it needed jurisdictional grounds to bring multiple counts.
