                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4938


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DANIEL NICHOLAS BUCZKOWSKI,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. James C. Fox, Senior
District Judge. (5:08-cr-00159-F-1)


Argued:   September 20, 2011                 Decided:   December 20, 2011


Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.      David A.
Bragdon, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.   ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        Daniel Buczkowski was convicted of one count of possessing

child pornography, see 18 U.S.C. § 2252(a)(4)(B), and twenty-

seven     counts       of    transportation            of        child   pornography           in

interstate      or     foreign    commerce,       see       18    U.S.C.    §   2252(a)(1).

Buczkowski      appeals,      challenging        the    convictions         and     sentences

imposed on the transportation counts only.                           While we find the

government’s       evidence       sufficient      to    establish        that     Buczkowski

transported child pornography, that evidence established only a

single    act     of    transportation.            Accordingly,            we   affirm        the

conviction      and     sentence     on    the     first          transportation        count,

vacate the remaining transportation convictions and sentences,

and remand for resentencing.



                                            I.

        After retiring from the Army, Buczkowski went to work as a

truck    driver      for    Kellogg,      Brown   &     Root       (“KBR”),     a      military

contractor.          Buczkowski worked for KBR in Iraq from November

2004 through February 2006 and from December 10, 2006 through

March    29,    2007.       Buczkowski      had    a    password-protected              laptop

computer that he used at home and took with him to Iraq.                                      The

evidence    presented        at   trial    established            that   when     he    was    in

Iraq, his computer was often in a shared lounge space and was

sometimes used by people other than Buczkowski.

                                            3
        Buczkowski was injured on March 21, 2007.                 He was sent to a

clinic in Kuwait for medical evaluation, where it was determined

that    he    should   return    to     the   United    States     for   treatment.

Buczkowski left from Kuwait, without returning to the base in

Iraq, and arrived in Fayetteville, North Carolina, on March 29,

2007.     KBR later shipped Buczkowski’s personal effects to him;

the shipment arrived around the first week of May 2007.

       On May 8, 2007, Buczkowski took his laptop to be repaired.

While     repairing       the   computer,     the      technician     found        child

pornography on the computer and called the police.                    Twenty-seven

images       qualifying    as   child     pornography      were     found     on    the

computer, all of which had been loaded onto the computer on

January 4, 2007, when Buczkowski was in Iraq.                       Buczkowski was

indicted on one count of possession of child pornography and

twenty-seven counts (one for each image) of transportation of

child pornography.

       A jury convicted Buczkowski of all counts.                    The district

court sentenced him to 240 months’ imprisonment on the first

transportation count, a consecutive 240 months’ on the second

transportation count, and concurrent sentences on the remaining

transportation counts.




                                          4
                                          II.

      Section    2252(a)        prohibits       “knowingly       transport[ing]         or

ship[ping] [child pornography] using any means or facility of

interstate or foreign commerce or in or affecting interstate or

foreign commerce by any means.”                  18 U.S.C. § 2252(a)(1).                At

trial,    the        government       sought     to     prove      that       Buczkowski

transported the child pornography by bringing the computer with

him when he returned from Iraq at the end of March.                           Buczkowski

contended that he had no knowledge the child pornography images

were on his computer and that he did not bring the computer with

him when he returned from Iraq.                 On appeal, Buczkowski concedes

the   sufficiency       of     the    evidence    showing        that    he    knowingly

possessed      the     child    pornography,          but   he    argues      that     the

government’s     evidence       was    insufficient         to   establish      that    he

transported the pornography by bringing the laptop with him when

he returned from Iraq.

      When considering the sufficiency of the evidence supporting

a criminal conviction, we must view “the evidence in the light

most favorable to the government, assuming its credibility, and

drawing all favorable inferences from it.”                        United States v.

Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011), petition for

cert. filed, (U.S. Oct. 4, 2011) (No. 11-6757).                         We must affirm

the jury’s verdict “if any rational trier of fact could have

found    the   essential       elements    of    the    crime     charged      beyond    a

                                           5
reasonable doubt.”       Id.    In our view, the government presented

sufficient evidence, both direct and circumstantial, from which

the     jury   could   have    rationally      concluded    that     Buczkowski

transported the computer.

      The direct evidence came through the testimony of Erika

Pennell, the niece of Buczkowski’s wife.              Pennell began living

with the Buczkowskis when she was sixteen, and she and her young

daughter were living with the Buczkowskis in March 2007 when

Buczkowski returned from Iraq.             Pennell and Buczkowski began a

sexual    relationship   at    some   point,    and   the   laptop    contained

pictures of them engaging in sexual acts.             Some of the pictures

of Pennell and Buczkowski were included in two photo collages

found on the laptop (J.A. 188-89, 283-84); the collages also

contained some of the child pornography images at issue in this

case, as well as images of adult men and women engaged in sexual

acts.    The collages were created on January 8, 2007, and January

27, 2007, when Buczkowski was in Iraq.           (J.A. 185-86)

      On direct examination, the government asked Pennell if she

was living in the house when Buczkowski returned in March 2007.

Her answer was, “Yes, I was.”          (J.A. 282)       The government then

asked, “And did he bring this laptop computer with him?”                    Her

answer was an unqualified, “Yes, he did.”             (J.A. 282)      Pennell’s

testimony, standing alone, would thus seem to be sufficient to

establish that Buczkowski transported the laptop.                  Buczkowski,

                                       6
however,     argues     that        his     cross-examination       of   Pennell

“clarified” that testimony and established that she did not see

the computer until May, when the KBR shipment arrived.

     Buczkowski     points     to    the   following     exchange   between   his

attorney    and    Pennell     as     providing    the     “clarification”    of

Pennell’s testimony:

     Q. Now, you said he brought his computer back with
     him?
     A. Yes.

     Q.    And did you see the bag it came in?
     A.    No, I saw the computer.

     Q. And he was using it while he was there at the end
     of March?
     A.    No, he plugged it into the Internet and it
     crashed, it wouldn’t even come up.

     Q. So, when did you see him using it?
     A. I didn’t say I saw him using it, I said I saw the
     computer.

     Q. Was it in April you saw it? Was it in May you saw
     it?
     A.   I saw it when he came back.      He was with it
     sitting in the chair in the living room hooking it up
     to the Internet and when he hooked it up, it started
     to do some kind of -- type of download and it crashed.
     He could not even turn it on.

     Q.    Was it the same day he came in?
     A.    I don’t know.

(J.A. 297)        Because Buczkowski took the laptop for repair in

early May, Buczkowski argues that Pennell’s testimony, “taken in

context,” Brief of Appellant at 22, establishes that Pennell did




                                           7
not see the laptop until May, after the KBR shipment arrived.

We disagree.

       Buczkowski’s       claim     is     dependent       on     several          unstated

assumptions -- that the only time Pennell saw the computer was

when Buczkowski discovered the problem with the computer; that

Buczkowski discovered the problem as soon as he received the

computer; and that he took the computer to be repaired as soon

as it crashed.          The evidence presented at trial, however, did

not compel the jury to reach those conclusions.                        The jury could

reasonably      have    concluded     that     Buczkowski        tried       to    use   the

laptop as soon as he got home in March and that it crashed then,

but that, because there were other computers in the house (along

with a thumb drive containing adult pornography), Buczkowski did

not get around to taking it to be repaired until May.                             While the

testimony of Buczkowski’s wife largely supported the timeline

that Buczkowski urges on appeal, the jury was not required to

credit    her   testimony      over      Pennell’s.        See    United      States      v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (“[I]f the

evidence     supports      different,      reasonable       interpretations,             the

jury     decides       which     interpretation       to    believe.”             (internal

quotation marks omitted)).

       Pennell’s       personal    history,     as     brought         out    on     cross-

examination,       gave    the     jury    ample      reason      to     question        her

credibility, and the cross-examination about when she saw the

                                           8
computer may well have cast doubt on the certainty she expressed

on direct examination.           The fact remains, however, that Pennell

testified that Buczkowski had the laptop when he returned home

in March, and, as a reviewing court, we are not at liberty to

ignore or recast her testimony.                “A fundamental premise of our

criminal trial system is that the jury is the lie detector,”

United States v. Scheffer, 523 U.S. 303, 313 (1998) (internal

quotation marks omitted), and it is “the unique province of the

jury    to    sift     through         conflicting     evidence,         assess      the

credibility of the witnesses, and find facts,” United States v.

Thomas, 467 F.3d 49, 55 (1st Cir. 2006).                Thus, when considering

the    sufficiency        of     the     evidence     supporting         a      criminal

conviction,    this    court      must    assume     that   the    jury      found   the

government’s witnesses credible, and we “must assume that the

jury resolved all contradictions in testimony in favor of the

[g]overnment.”       Penniegraft, 641 F.3d at 572 (internal quotation

marks omitted).       Given this strict standard of review, we simply

cannot accept Buczkowski’s contention that Pennell’s testimony

was insufficient to establish that he transported the laptop by

bringing it from Iraq to the United States.

       Moreover,     even      without    Pennell’s     testimony,        the    record

contains     sufficient        circumstantial       evidence      to    support      the

determination      that     Buczkowski      transported      the       laptop.       See

United States v. Martin, 523 F.3d 281, 289 (4th Cir. 2008) (“As

                                           9
we    have    observed     repeatedly,       circumstantial             evidence    is    not

inherently less valuable or less probative than direct evidence

and may alone support a guilty verdict.” (internal quotation

marks omitted)).

        The evidence established that most of the child pornography

images were last accessed and viewed on the laptop on March 25,

2007 (J.A. 184), when Buczkowski was in Kuwait for evaluation of

his injury.        (One image was last accessed on a date in May 2007

when the laptop was being repaired.) (J.A. 154-55)                          Buczkowski’s

laptop       was   password-protected,           and   the    password       had     to       be

entered as soon as the computer was turned on.                                (J.A. 182)

While    there     was    evidence    that   Buczkowski           let    others    use    his

laptop while he was in Iraq, the evidence did not establish that

Buczkowski actually shared his password with others.                               Instead,

the     evidence     suggested       that    others     used       the     laptop     after

Buczkowski had logged on.              (J.A. 476-77)              Moreover, the child

pornography images and the pictures of Buczkowski engaging in

sexual    acts     with    Pennell    were    located        on   the     computer       in    a

folder that required a different password to gain access.                             (J.A.

180-81, 188-89)          Given the presence of the Pennell pictures, the

jury could reasonably have concluded that, even if Buczkowski

had shared his log-on password, he would not have shared the

password for the image folder; that only Buczkowski knew the

passwords for both the computer and the image folder; and that

                                            10
it   therefore    was    Buczkowski     who   turned   on   the   computer    and

viewed the images on March 25.           Because Buczkowski was in Kuwait

on March 25 and did not return to base in Iraq before flying

back to the United States, this evidence supports the conclusion

that Buczkowski brought the laptop with him when he returned

home on March 27.

       The evidence about the availability of medical treatment in

Iraq   likewise    lends      support   to     the   government’s    view     that

Buczkowski had the computer with him when he returned to the

United   States.        The   base   where    Buczkowski    was   stationed    had

limited ability to provide medical care.               Employees with medical

issues that could not be treated on-base were sent to medical

clinics in Kuwait or Dubai, which required travel from the base

to the Green Zone in Baghdad, from the Green Zone to the Baghdad

airport, and from the airport to Kuwait or Dubai.                  As the facts

of this case establish, the process of getting treatment could

take several days:        Buczkowski was injured on March 21; arrived

in Baghdad from the KBR base on March 23; left Baghdad for

Kuwait on March 24; was seen at the clinic in Kuwait on March

26; and departed Kuwait on March 28.                 The KBR travel request

form prepared in connection with Buczkowski’s injury showed that

he would spend one night in Baghdad before leaving for Kuwait

(J.A. 393-94), and the jury could reasonably have concluded that

Buczkowski would have known the travel-and-treatment process was

                                        11
a    long   and    drawn     out    one,    thus    making          it    more    likely      that

Buczkowski        would     have    taken    his       computer          with    him    to    have

something to pass the time.

       Finally, Buczkowski’s wife testified that Buczkowski took

his    military        backpack     when    he     left       for    Iraq       and    that    the

computer     was       in   the    backpack.           (J.A.    409)            Her    testimony

therefore established that the computer fit in the backpack, and

the jury could reasonably have concluded that the laptop was in

the backpack on the return trip and that Mrs. Buczkowski perhaps

did not see it.

       Accordingly, after considering the record as a whole in the

light most favorable to the government and giving the government

the benefit of all inferences that reasonably can be drawn from

that evidence, we conclude that the evidence was sufficient to

support     the    jury’s     determination            that    Buczkowski          transported

child pornography.



                                            III.

       As noted above, Buczkowski was indicted on and convicted of

twenty-seven counts of transportation of child pornography --

one count for each image.              The district court imposed sentences

of    240    months’        imprisonment         for     the        first       transportation

conviction,        a    consecutive        240    months’       imprisonment           for    the

second conviction, and concurrent 240-month sentences for each

                                             12
of   the   remaining       transportation             convictions.     On    appeal,

Buczkowski      contends      that   the        indictment     was   multiplicitous

because it split the single prohibited act of transporting child

pornography into twenty-seven separate offenses, one for each

image on the laptop.          See United States v. Colton, 231 F.3d 890,

908 (4th Cir. 2000) (“Multiplicity involves charging a single

offense    in   more   than    one   count       in    an   indictment.”    (internal

quotation marks omitted)).            Because the government’s evidence

proved only a single act of transportation (transporting the

laptop from Iraq to the United States), Buczkowski argues that

he can be convicted and sentenced for only a single violation of

§ 2252(a)(1). ∗    We agree.



     ∗
       The Federal Rules of Criminal Procedure require objections
to defects in an indictment to be made before trial; absent good
cause, the failure to timely object amounts to waiver of the
objection.   See Fed. R. Crim. P. 12(b)(3)(B) & (e).       Because
Buczkowski did not object to the indictment before trial, the
government argues he waived any multiplicity claim. See United
States v. Colton, 231 F.3d 890, 909 (4th Cir. 2000) (“Failure to
object to a count on grounds of multiplicity prior to trial
generally waives that objection.”).     Based on the unique facts
of this case, we do not believe Rule 12 prevents us from
considering   the  multiplicity   issue   in   this  case.     The
transportation    counts   were    not     plainly   “ineluctably”
multiplicitous until trial, thus good cause under Rule 12(e)
relieved Buczkowski of the waiver.          See United States v.
Williams, 89 F.3d 165, 167 n.1 (4th Cir. 1996) (granting relief
from Rule 12’s waiver provision because the defect in the
indictment did not become apparent until trial, when the
government’s evidence established that the counts in the
indictment were “ineluctably contradictory”).



                                           13
       Whether Buczkowski committed one or twenty-seven offenses

by     transporting      the     laptop       containing         twenty-seven           images

depends on what Congress intended to be “the allowable unit of

prosecution” under the statute.                Bell v. United States, 349 U.S.

81, 81 (1955) (internal quotation marks omitted); see United

States v. Dunford, 148 F.3d 385, 389 (4th Cir. 1998).                                 At issue

in Bell was the Mann Act, 18 U.S.C. § 2421, which at that time

made    it   a   crime    to    “knowingly         transport[]        in   interstate       or

foreign      commerce     any       woman     or     girl       for    the      purpose     of

prostitution.”           Bell,      349     U.S.    at    82     (internal       alteration

omitted).        The defendant in that case had transported two women

in the same vehicle on a single interstate trip and had been

convicted and sentenced for two violations of the statute.                                 The

Supreme Court found the statute ambiguous as to the intended

unit    of   prosecution        and    held       that    the    ambiguity        must     “be

resolved     against     turning      a     single       transaction       into       multiple

offenses.”       Id. at 84.

       Section      2252(a)(1)        makes        it     a    crime       to    “knowingly

transport[] or ship[] . . .                 in interstate or foreign commerce

any visual depiction . . . of a minor engaging in sexually

explicit     conduct.”         18   U.S.C.     §    2252(a)(1)(A).              The    central

focus of the statute is the act of transporting, not the number

of individual images transported, and the prohibition against

transporting “any” images does not unambiguously make each image

                                             14
transported count as a separate offense.                              See Dunford, 148 F.3d

at 389-90 (finding § 922(g)’s prohibition of possession of “any

firearm” ambiguous as to the allowable unit of prosecution);

United    States      v.    Coiro,      922       F.2d    1008,       1014       (2d       Cir.    1991)

(noting      that     “any”      “has       typically          been     found         ambiguous          in

connection      with       the    allowable            unit     of     prosecution,              for     it

contemplates the plural, rather than specifying the singular”

(internal quotation marks omitted)).                           Because the language of §

2252(a)(1)      is     functionally           identical          to     that         in    Bell,       and

because      Buczkowski,         like       the   defendant           in    Bell,         transported

multiple      items       through       a    single       act     of       transportation,               we

believe Bell compels the conclusion that Buczkowski’s conduct

amounted to only a single violation of the statute.                                            See Bell,

349 U.S. at 84; see also United States v. Gallardo, 915 F.2d

149, 151 (5th Cir. 1990) (per curiam) (concluding that under §

2252(a)(1),     each       separate         act     of    transporting           is        a    separate

offense and that simultaneously mailing four separate envelopes

was   four    separate       acts    of      transportation,               but       noting       that    a

“defendant      arrested          with        one        binder        containing               numerous

photographs         has    committed         only        one    act        of    transportation”

(emphasis      added)).           The       district       court        therefore              erred     by

entering      judgment        and       imposing          sentences             on        twenty-seven

separate counts.



                                                  15
      While Buczkowski’s multiplicity claim is not waived under

Rule 12(e) under the unique facts of this case, his failure to

raise     the   issue     below    mandates     application        of   plain-error

review, which requires Buczkowski to show the existence of a

plain error that affected his substantial rights.                       See, e.g.,

United States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011).                       In

light of Bell and our cases addressing the multiplicity issue

under other statutes, we believe the error was plain.                      See id.

(“An error is plain when it is obvious or clear under current

law.” (internal quotation marks omitted)).                   The error affected

Buczkowski’s substantial rights because a consecutive statutory-

maximum sentence was imposed on the second conviction and the

remaining transportation convictions themselves carry collateral

consequences notwithstanding the concurrent sentences.                     See Ball

v.   United     States,    470    U.S.   856,    865    (1985)     (“The   separate

conviction, apart from the concurrent sentence, has potential

adverse    collateral      consequences       that     may   not   be   ignored.”);

United States v. Bennafield, 287 F.3d 320, 324 (4th Cir. 2002)

(special      assessment    imposed      on   concurrent      sentence     affected

defendant’s      substantial       rights       under    plain-error       review).

Because it would affect the fairness of judicial proceedings to

allow multiple convictions and sentences to be imposed for a

single offense, we exercise our discretion to correct the error.

See Bennafield, 287 F.3d at 324.

                                         16
     Accordingly,      while    we     find    no   error         in   the     first

transportation conviction and sentence, we vacate the remaining

transportation   convictions         and    sentences     (including         special

assessments) and remand for resentencing.                See United States v.

Burns, 990 F.2d 1426, 1438 (4th Cir. 1993) (“The signal danger

in multiplicitous indictments is that the defendant may be given

multiple   sentences    for    the   same     offense.    .   .    .    [If]    the

defendant has suffered multiple convictions and faces multiple

sentences, the appropriate remedy is to vacate all of them but

one.”).

                                                              AFFIRMED IN PART,
                                                               VACATED IN PART,
                                                                   AND REMANDED




                                       17
