                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1882
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                   Christopher Emly

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                     for the District of North Dakota - Fargo
                                  ____________

                           Submitted: December 18, 2013
                               Filed: April 3, 2014
                                  ____________

Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
                              ____________

WOLLMAN, Circuit Judge.

       Christopher Emly was convicted of one count of receipt of materials involving
the sexual exploitation of children, in violation of 18 U.S.C. § 2252(a)(2), and three
counts of possession of materials involving the sexual exploitation of children, in
violation of 18 U.S.C. § 2252(a)(4)(B). On appeal, Emly alleges three errors: (1) his
multiple convictions for possession violate the Double Jeopardy Clause; (2) the jury’s
guilty verdict on both the greater receipt offense and its lesser included possession
offense violates the Double Jeopardy Clause; and (3) the jury instructions
constructively amended the indictment. We affirm in part and remand with directions.

                                   I. Background

       In October 2010, Special Agent James Shaw of the North Dakota Bureau of
Criminal Investigation discovered several files containing child pornography that he
traced to a computer located in Emly’s mother’s home. Agent Shaw obtained a search
warrant for the residence. During the search, Agent Shaw seized a laptop computer
that contained the files he had first discovered. He also found and seized a Secure
Digital card (SD card), a compact disc (CD), and a desktop computer tower. All of
these items were seized from a room identified as Emly’s bedroom.

       Forensic analysis of the laptop revealed that LimeWire, a file-sharing software
program that allows users to receive and distribute files over the Internet, had been
installed on the laptop, but had been subsequently uninstalled prior to the search. The
analysis also revealed approximately 629 image files containing child pornography
on the laptop. The SD card contained copies of 481 of the child pornography files
found on Emly’s laptop. Additionally, the CD and the desktop computer each
contained the same set of six to eight illegal images. These images were not part of
the 629 image files found on the laptop, but the evidence suggests that Emly burned
the six to eight images onto the CD from the laptop and then transferred the images
onto the desktop computer tower. After Emly successfully burned the six to eight
images onto the CD, these images were automatically deleted from the laptop.

       A federal grand jury returned an indictment charging Emly with the counts set
forth above. Specifically, the indictment charged Emly with one receipt count for
using his laptop to receive child pornography files via LimeWire and one possession
count each for the SD card, the CD, and the desktop computer tower. All three
possession counts charged Emly with possession of child pornography on the same

                                         -2-
day—the day the devices were seized—“on or about November 9, 2010.” The district
court denied Emly’s pretrial motion to merge the three possession counts.

      Emly proposed a jury instruction for the charged receipt offense, Instruction
No. 9, based on the Manual of Model Criminal Jury Instructions for the District
Courts of the Eighth Circuit. The government proposed a similar jury instruction but
included language regarding the production of the child pornography that was absent
from Emly’s proposed instruction. The district court substantially adopted Emly’s
proposed instruction in its final jury instructions.

       At trial, the district court instructed the jury on both the charged receipt offense
and its lesser included offense of possession. The instruction on the lesser included
offense was a classic “stair-step” instruction, ordering the jury to consider the lesser
included offense only if it found the defendant not guilty or if it could not reach a
verdict on the receipt offense. The Special Verdict Form also instructed the jury to
find Emly either not guilty or guilty of the receipt offense and further instructed the
jury to deliberate on the lesser included possession offense only if it found Emly not
guilty of the receipt offense. Despite the instructions, the jury returned a guilty verdict
on both the receipt offense and its lesser included possession offense. The district
court did not, however, enter judgment of conviction on the lesser included possession
offense. The jury also returned a guilty verdict on each of the three possession counts.
The district court polled the jury to ensure that the verdict was unanimous and, in
response, each juror confirmed that the verdict read in court was his or her verdict.
Emly did not object to any of these matters at trial.

      The district court sentenced Emly to 228 months’ imprisonment on the receipt
count and 120 months’ imprisonment on each count of possession. The sentences
were ordered to run concurrently. This appeal followed.




                                           -3-
                                   II. Discussion

                                   A. Multiplicity

       Emly argues that under § 2252(a)(4)(B), the three possession counts listed in
the indictment are multiplicitous because they charge the same crime. He contends
that the conduct charged in the indictment—possessing copies of several different files
on separate devices—constitutes only a single violation of § 2252(a)(4)(B). We agree.

       “We review de novo the district court’s determination that counts in an
indictment are multiplicitous.” United States v. Platter, 514 F.3d 782, 785 (8th Cir.
2008). “The rule against multiplicitous prosecutions is based on the Fifth
Amendment’s Double Jeopardy Clause, which ‘protects against multiple punishments
for the same offense.’” United States v. Hinkeldey, 626 F.3d 1010, 1013 (8th Cir.
2010) (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)). When an indictment
includes more than one count charging the same statutory violation, “the question is
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). A unit
of prosecution is “the aspect of criminal activity that Congress intended to punish.”
Id. at 448. “When Congress fails to establish the unit of prosecution ‘clearly and
without ambiguity,’ we resolve doubt as to congressional intent in favor of lenity for
the defendant.” Id. (quoting Bell v. United States, 349 U.S. 81, 84 (1955)).

      Section 2252(a)(4)(B) makes it a crime to

      knowingly possess[] . . . 1 or more books, magazines, periodicals, films,
      video tapes, or other matter which contain any visual depiction . . . if--
      (i) the producing of such visual depiction involves the use of a minor
      engaging in sexually explicit conduct; and (ii) such visual depiction is of
      such conduct[.]



                                         -4-
Whether § 2252(a)(4)(B) permits a charge for each matter possessed in violation of
the statute is a question of first impression in our circuit. We have, however,
suggested that the language in § 2252(a)(4)(B) manifests Congress’ intent to include
multiple matters in a single unit of prosecution. In United States v. Hinkeldey, 626
F.3d 1010, 1011 (8th Cir. 2010), the defendant was convicted of six counts of
possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The
indictment charged one possession count each for a computer, a zip drive, and four
computer disks that contained child pornography. Id. at 1012. Section
2252A(a)(5)(B) makes it a crime to “knowingly possess[] . . . any book, magazine,
periodical, film, videotape, computer disk, or any other material that contains an
image of child pornography” (emphasis added). On appeal, the defendant argued that
the counts of possession were multiplicitous because the simultaneous possession of
overlapping files on separate devices did not constitute distinct possession crimes
under § 2252A(a)(5)(B). Hinkeldey, 626 F.3d at 1012-13. We held that
§ 2252A(a)(5)(B) permits a separate count for each type of material or storage device
possessed. Id. at 1013. In so holding, we distinguished the language of
§ 2252A(a)(5)(B) from that of § 2252(a)(4)(B): “Unlike the term ‘any’ in
§ 2252A(a)(5)(B), the phrase ‘1 or more’ in § 2252(a)(4)(B) arguably manifests a
clear intention to include multiple materials in a single unit of prosecution.” Id. at
1014.

        In addition to Hinkeldey, Emly points to two cases, one from the Second Circuit
and the other from the First Circuit, that support his interpretation of § 2252(a)(4)(B):
United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009), and United States v.
Chiaradio, 684 F.3d 265 (1st Cir. 2012). In Polouizzi, the defendant was charged with
eleven counts of possession under § 2252(a)(4)(B) for possessing eleven illegal image
files, collectively found on three hard drives in two separate rooms. 564 F.3d at 146-
48. The government argued that each computer file containing an image was a
“matter” under the statute and “that the possession of each ‘matter’ is a separate



                                          -5-
violation of § 2252(a)(4)(B).” Id. at 155. The court held that § 2252(a)(4)(B) did not
permit the conviction of the defendant on multiple possession counts under any
interpretation of “matter.” Id. at 155 n.4. The court concluded that “[b]ased on the
clear language of the statute . . . Congress intended to subject a person who
simultaneously possesses multiple books, magazines, periodicals, films, video tapes,
or other matter containing a visual depiction of child pornography to only one
conviction under 18 U.S.C. § 2252(a)(4)(B).” Id. at 155. The court reached its
conclusion by looking to the plain language of the statute and contrasting the term “1
or more” in § 2252(a)(4)(B) with the word “any.” Id. Further, the court pointed to
§ 2252(c)(1), which provides an affirmative defense to a § 2252(a)(4) charge if the
defendant “possessed less than three matters containing [prohibited images],” and
reasoned that “[s]uch a defense necessarily contemplates that a person who possessed
two matters containing prohibited images would face a single charge of violating
§ 2252(a)(4)(B).” Id. (first alteration in original).

       In Chiaradio, the First Circuit followed the Second Circuit’s lead. There, the
defendant was charged with two counts of possession under § 2252(a)(4)(B) based on
images of child pornography found on two separate computers. Chiaradio, 684 F.3d
at 272-73. The computers were located in different rooms and had different functions
(one was used for acquiring the images and the other was used for storing them) but
were linked (they shared an internal network through which files could freely move
back and forth). Id. at 273. Some of the images contained on the computers
overlapped. Id. In determining whether Congress intended to punish the possession
of each matter in violation of the statute separately, the court stated that

      the legislative history contains no indication that Congress intended to
      permit multiple prosecutions when it used the term “one or more” in
      section 2252(a)(4)(B), nor is there any inkling that Congress intended to
      allow prosecutors to divide simultaneous possession by a single




                                         -6-
      individual of several matters containing child pornography into multiple
      units of prosecution[.]

Id. at 274. Thus, the court held that a defendant “who simultaneously possesses a
multitude of forbidden images at a single time and in a single place will have
committed only a single offense.” Id.

       Additionally, the Chiaradio court rejected the government’s attempt to
distinguish Polouizzi based on the fact that the computers were found in separate
rooms. Id. at 275. The court reasoned that “[i]f a defendant had multiple photo
albums of images in his bedroom and living room and periodically swapped images
between them, two convictions—one for each album—would not stand.” Id. Further,
the court highlighted that the term “1 or more” in § 2252(a)(4)(B) “contrasts sharply”
with the word “any” found in § 2252A(a)(5)(B). Id. Citing to Hinkeldey, the court
concluded that “[t]he phrase ‘one or more,’ unlike the word ‘any,’ strongly suggests
Congress’s intent that multiple matters be included in a single unit of prosecution.”
Id.

       The government argues that these two cases are not persuasive because they
involve materially different facts and because their holdings run afoul of the plain
language of § 2252(a)(4)(B). As the government would have it, by copying the files
onto three different devices, creating three separate matters, on three separate
occasions, Emly committed three separate violations of the statute. The government
labors to distinguish the facts of Chiaradio and Polouizzi. It argues that the facts of
Chiaradio are materially different because the two computers on which the child
pornography was possessed were linked together, whereas the devices involved here
were not connected, were created at different times, and contained different images.
We consider these to be irrelevant distinctions. The significant fact is that Emly
possessed all of the images found on the separate devices on one medium prior to
copying and transferring them onto the separate devices. Additionally, all of the


                                         -7-
devices were seized from one location, Emly’s bedroom. Although certain of the
devices contained images different from the others, the images were not distinct in
that they all originated from Emly’s laptop. Under the reasoning expounded in
Chiaradio, the periodic placement of images or copies of images in different storage
containers, such as photo albums or computers, does not constitute a violation of
§ 2252(a)(4)(B) each time the images are moved or copied in a manner that creates a
new matter under the statute. There is no functional difference between identical
copies of a single image stored on two different devices and one copy of the same
image accessible on two or more computers located in different places.

       The government attempts to distinguish the facts in Polouizzi by arguing that
in that case no evidence was presented showing that the defendant had acquired
possession of the eleven image files on different occasions, whereas evidence here
showed Emly “possessed hundreds of unique images on three different media,
acquired during three different transactions.” Although Emly copied the images onto
separate devices at different times, the images found on the three separate devices all
originated from the same source, Emly’s laptop, were all already possessed at the time
that each new matter was created, and were then merely stored on different devices.
The act of copying or transferring files onto different devices in itself does not
constitute an independent violation of the statute. See Chiaradio, 684 F.3d at 275.
Accordingly, Emly cannot be charged with three counts of possession solely because
he moved the location of illegal images to a different storage device on three separate
occasions. The government also argues that, unlike Polouizzi, the number of charges
in this case corresponds to the number of devices rather than the number of image
files. But as the Polouizzi court stated, it is immaterial whether the charges are based
on the number of files or the number of hard drives that contained the files because
“Congress intended to subject a person who simultaneously possesses multiple books,
magazines, periodicals, films, video tapes, or other matter containing a visual




                                          -8-
depiction of child pornography to only one conviction under 18 U.S.C.
§ 2252(a)(4)(B).” 564 F.3d at 155.

       Finally, the government argues that the legislative history of § 2252(a)(4)(B)
confirms that the language of the statute permits charging multiple counts, one for
each matter possessed. In support, the government points to Congress’ amendment
of § 2252(a)(4)(B) in 1998, replacing the “3 or more” requirement with “1 or more.”
The court in Chiaradio considered the same argument and rejected it. 684 F.3d at 274.
Congress amended the statute in this manner to prohibit the possession of a single
image, see 144 Cong. Rec. 25,239 (1998) (statement of Sen. Orrin Hatch), ensuring
that the statute criminalized the possession of any amount of child pornography. This
change does not indicate that Congress intended to permit a separate charge for each
image or matter possessed.

       As our holding in Hinkeldey indicates, the government could have charged
Emly with multiple counts of possession under § 2252A(a)(5)(B), but it chose not to
do so. We will not read § 2252(a)(4)(B) in a manner that would justify the
government’s charging decision. See Chiaradio, 684 F.3d at 276. We thus conclude
that the three possession counts are multiplicitous.

       We turn, then, to consider the appropriate remedy necessitated by our holding.
Emly argues that his case must be remanded for a new trial on a single possession
count. A multiplicitous indictment requires remand for a new trial only if the
multiplicity prejudices the defendant. See United States v. Roy, 408 F.3d 484, 492
(8th Cir. 2005). Emly asserts that the multiplicitous counts prejudiced him because
“the prolix pleading may have [had] some psychological effect upon [the] jury by
suggesting to it that [Emly] ha[d] committed not one but several crimes.” United
States v. Sue, 586 F.2d 70, 71 (8th Cir. 1978) (per curiam) (quoting United States v.
Ketchum, 320 F.2d 3, 8 (2d Cir. 1963)).



                                         -9-
       We are not persuaded by Emly’s argument that the multiplicitous counts of
possession tainted the jury’s deliberations. We have held that instructions that direct
the jury to consider each charge separately ensure that the jury’s verdict on the valid
counts will not be influenced by the multiplicitous counts. Chipps, 410 F.3d at 449;
see also United States v. Robertson, 606 F.3d 943, 953 (8th Cir. 2010). Here, the
district court instructed the jury to consider each charge separately. Furthermore,
when evidence as to the valid counts is strong, we have held that “any effect that the
multiplicitous counts could have had on the jury would have been negligible, and not
sufficiently strong to warrant retrial.” Chipps, 410 F.3d at 449. The government
presented substantial evidence of Emly’s possession of child pornography on the SD
card, CD, and desktop computer tower. Forensic evidence demonstrates that Emly
acquired the child pornography from LimeWire, that he stored the images on the
various devices, and that the devices were located in his bedroom and accessed solely
by him.

       When no prejudice has been shown and the district court has imposed
concurrent sentences on the multiplicitous counts, the appropriate remedy is a
directive to vacate the convictions on the multiplicitous counts. See United States v.
Grimes, 702 F.3d 460, 469 (8th Cir. 2012); Robertson, 606 F.3d at 953; Chipps, 410
F.3d at 449; Roy, 408 F.3d at 492; Sue, 586 F.2d at 71-73. “The ‘principal danger
that the multiplicity doctrine addresses’ is the risk that a defendant might receive
multiple punishments for a single offense.” Roy, 408 F.3d at 492 (quoting United
States v. Webber, 255 F.3d 523, 527 (8th Cir. 2001)). Because Emly received
concurrent sentences on all of his convictions, a remand with directions that the
convictions on two of the three possession counts be vacated renders a new trial
unnecessary.




                                         -10-
                                    B. Jury Verdict

       Emly next argues that the jury erred in convicting him on the receipt count
because it returned a guilty verdict on both the receipt offense and the lesser included
possession offense. Emly contends that the district court did not sufficiently cure this
error by entering judgment of conviction and sentencing him solely on the receipt
offense. He asks that his case be remanded for new trial on the receipt count.1
Because Emly failed to raise this issue before the district court, we review the district
court’s decision for plain error. See Robertson, 606 F.3d at 949-50. “Under plain
error review, the defendant must show: (1) an error; (2) that is plain; and (3) that
affects substantial rights.” United States v. Mireles, 617 F.3d 1009, 1012 (8th Cir.
2010) (quoting United States v. Bain, 586 F.3d 634, 640 (8th Cir. 2009) (per curiam)).
“A plain error will not be corrected unless (4) it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 1013 (quoting Bain, 586
F.3d at 640).

        In United States v. Howard, 507 F.2d 559 (8th Cir. 1974), the defendant was
charged with two counts of distributing heroin. The district court instructed the jury
that if it found that the defendant possessed heroin but did not distribute it, the jury
could return a guilty verdict on the lesser included possession offense. Id. at 560-61.
Despite the district court’s instructions, the jury returned a guilty verdict for both
distribution and possession on both counts. Id. at 561. We held that “[w]hile the jury
failed to follow the court’s instructions, a finding of guilty on the lesser offenses as


      1
        Emly relies on Milanovich v. United States, 365 U.S. 551 (1961), in support
of his argument. Milanovich is inapposite, however, because Emly was found guilty
of both a greater and lesser included offense, not two distinct crimes involving
inconsistent facts. See United States v. Belt, 516 F.2d 873, 875-76 n.8 (8th Cir. 1975)
(holding that when “there is a greater and lesser included offense and no inconsistency
in their respective elements but only an additional element in the greater offense . . .
the problem in Milanovich is absent”).

                                          -11-
well as on the major offenses creates per se no inconsistency in conclusions,” because
“in finding the defendant guilty of the major offenses the jury must necessarily have
concluded that all of the elements of the lesser included offenses were present.” Id.
at 563. Further, we concluded that the district court “cured any ambiguity in the
verdicts by polling the jurors in open court and determining that they each intended
to find [the defendant] guilty . . . as charged in the indictment.” Id. While we
acknowledged that the district court should not have accepted both sets of verdicts, we
held that the verdicts on the lesser included offenses were mere surplusage. Id. We
thus remanded the case to the district court with instructions to vacate the convictions
on the two lesser included offenses. Id.

       A jury’s guilty verdict on both a greater and lesser included offense is not
plainly inconsistent or ambiguous. See id.; see also United States v. Poole, 545 F.3d
916, 919 (10th Cir. 2008). Every element necessary to a finding of guilt on the lesser
included offense of possession was also required to convict Emly of the greater
offense of receipt. The only evident problem a guilty verdict in these circumstances
poses is one of double counting, the risk of which the district court eliminated by
entering judgment of conviction solely on the greater receipt offense.

       Even assuming, as Emly contends, that the jury’s verdict was ambiguous, it is
not accurate to state that the district court took no remedial measures. Here, the
district court polled the jury to ensure that each juror intended to convict Emly on each
of the offenses. All jurors responded in the affirmative. The district court has various
remedies available to cure an ambiguous verdict, see Howard, 507 F.2d at 562, “and,
in the absence of a contemporaneous objection at trial, we should not second guess its
choice of remedy unless its decision was plainly erroneous under the circumstances[,]”
see Poole, 545 F.3d at 922. The district court ensured that the guilty verdict was not
ambiguous by polling the jury, and it eliminated any threat of double counting by
entering judgment of conviction only on the greater receipt offense.



                                          -12-
                            C. Constructive Amendment

       Emly argues that the district court’s jury instruction on the receipt charge
constructively amended the indictment. Because Emly failed to object to the
instruction at trial, we review the district court’s decision for plain error. See United
States v. Gavin, 583 F.3d 542, 546-47 (8th Cir. 2009) (“In the absence of objection
at trial, we need not precisely decide whether constructive amendment compels
reversal in all cases.”); cf. United States v. Gill, 513 F.3d 836, 850 (8th Cir. 2008)
(declining to decide whether a constructive amendment constitutes reversible error per
se where the jury instructions did not constructively amend the indictment). “A
constructive amendment occurs when the essential elements of the offense as charged
in the indictment are altered in such a manner . . . that the jury is allowed to convict
the defendant of an offense different from or in addition to the offenses charged in the
indictment.” United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir. 2007).
“In order to determine whether an indictment was constructively amended, we
consider whether the jury instructions, taken as a whole, ‘created a substantial
likelihood that the defendant was convicted of an uncharged offense.’” United States
v. Buchanan, 574 F.3d 554, 564 (8th Cir. 2009) (quoting Whirlwind Soldier, 499 F.3d
at 870).

      The indictment charged Emly with “knowingly receiv[ing] visual depictions
which had been mailed, shipped, and transported in interstate commerce by any
means, including by computer, the production of which visual depictions involved the
use of minors engaging in sexually explicit conduct and which depictions were of
such conduct[.]” Emly argues that the jury instructions constructively amended the
indictment because Instruction No. 9 omitted the production element and thus did not
require the jury to find that the visual depictions had been produced by the use of a
minor.




                                          -13-
      Instruction No. 9 provided:

      One, that beginning on or about October 2010 and continuing on until on
      or about November 9, 2010, the defendant knowingly received visual
      depictions of minors engaging in sexually explicit conduct using a
      Compaq Presario laptop computer bearing Serial Number CNF022CG25
      containing a Toshiba 250 BG hard drive bearing Serial Number
      50N8B0RJB;

      Two, the defendant knew the visual depictions portrayed at least one
      minor engaged in sexually explicit conduct; and

      Three, the visual depictions were shipped or transported in or affecting
      interstate or foreign commerce by any means of interstate or foreign
      commerce including by computer.

       We conclude that Instruction No. 9 did not constructively amend the
indictment, because it fairly captured the production element of the crime. Emly
stipulated that the images he received and possessed depicted actual children.
Accordingly, minors must have been used in the production of the images in this case.
So, implicit in finding that the images Emly received contained actual minors is the
finding that the images were produced using minors.

                                    III. Conclusion

      We affirm Emly’s conviction of one count of receipt of child pornography. We
remand the case to the district court with directions that it vacate all but one of Emly’s
possession convictions.
                        ______________________________




                                          -14-
