                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4905


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL SCHNITTKER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:14-cr-00086-AJT-1)


Argued:   October 29, 2015                Decided:   December 2, 2015


Before WILKINSON, SHEDD, and WYNN, Circuit Judges.


Affirmed by published opinion.       Judge Wilkinson        wrote   the
opinion, in which Judge Shedd and Judge Wynn joined.


ARGUED: Cary Citronberg, THE LAW OFFICES OF JOHN ZWERLING, P.C.,
Alexandria, Virginia, for Appellant. Christopher John Catizone,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.   ON BRIEF: John Kenneth Zwerling, THE LAW OFFICES OF
JOHN ZWERLING, P.C., Alexandria, Virginia, for Appellant.   Dana
J. Boente, United States Attorney, Matt J. Gardner, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:

       This appeal involves the application of the Double Jeopardy

Clause when a criminal defendant pleads guilty to one crime in

an indictment and elects to go to trial on the other. Appellant

Michael Schnittker appeals his conviction for receipt of child

pornography in violation of 18 U.S.C. § 2252(a)(2). Schnittker

argues      that    his     prosecution         and    conviction      under     18    U.S.C.

§ 2252(a)(2) should have been barred by the Fifth Amendment’s

Double Jeopardy Clause because of his earlier plea to possession

of child pornography in violation of 18 U.S.C. § 2252(a)(4).

Because      we     find     no     double      jeopardy        violation,       we    reject

Schnittker’s argument and affirm his conviction.

                                                I.

       On    November       7,    2013,       federal      agents    executed     a    search

warrant      on    Schnittker’s       home.         During    the    search,    the    agents

seized      two    hard    drives:       a    Western      Digital    hard     drive   and   a

Maxtor hard drive. Computer forensic analysis showed that the

hard     drives       collectively             contained        approximately          18,000

pornographic images or videos, and that a great many of the

images or videos on each hard drive were of child pornography.

       On   March    6,     2014,    a       grand    jury    indicted   Schnittker       for

receipt      of     child        pornography,         in     violation   of      18    U.S.C.

§ 2252(a)(2) (Count 1), and possession of child pornography, in

violation of 18 U.S.C. § 2252(a)(4) (Count 2).

                                                2
       The indictment spoke in general terms. Both Count 1 and

Count 2 referred to “any visual depiction of a minor engaging in

sexually explicit conduct . . . .” J.A. 14-15. And neither Count

1 nor Count 2 named the child pornography files or hard drives

that supported the prosecution. In addition, the indictment’s

forfeiture     notice      provided         that     “[u]pon       a    conviction        for

violating 18 U.S.C. Sections 2252(a)(2) or (a)(4), the defendant

MICHAEL SCHNITTKER shall forfeit to the United States any and

all matters which contain visual depictions of minors engaged in

sexually explicit conduct . . . .” J.A. 16. The notice listed

Schnittker’s      “Generic      Computer”        and   both    the      Western      Digital

hard drive and the Maxtor hard drive as property to be forfeited

upon conviction.

       A few weeks later, defense counsel informed the government

that   Schnittker     intended        to     plead     guilty      to       Count    2   (the

possession   charge)      and    go    to    trial     on     Count     1    (the    receipt

charge). Perhaps sensing a double jeopardy claim in the offing,

the government sent an email to defense counsel to “make it

express” that the child pornography on the Maxtor hard drive

would support Count 1 and the child pornography on the Western

Digital   hard    drive    would      support      Count      2.   J.A.      252.    Defense

counsel    then    asked     the      government        to     clarify        what       child

pornography was on each hard drive. In its reply, the government

attached spreadsheets that listed the child pornography files on

                                             3
each hard drive reviewed by the forensics expert. A review of

these spreadsheets showed that at least some of the file names

on the Maxtor hard drive were different from the file names on

the   Western    Digital     hard       drive.   The     government    told        defense

counsel    that,   “[a]t     trial,      [it]    could     use   any   of    the    child

pornography from the Maxtor hard drive to support the receipt

count.” J.A. 251.

      In conjunction with Schnittker’s decision to plead guilty

to Count 2 (possession), Schnittker, defense counsel, and the

government signed a statement of facts detailing the evidence

supporting Schnittker’s plea. The statement of facts named the

Western Digital hard drive but did not mention the Maxtor hard

drive.     It   provided         that    the     Western     Digital        hard    drive

“contained      over    a    thousand          images    and     videos      of     child

pornography.” J.A. 21. The statement of facts also had a general

reservation provision stating that it did “not include each and

every fact known to the Defendant or the government, and it is

not   intended     to   be   a    full    enumeration      of    all   of    the     facts

surrounding the Defendant’s case.” J.A. 22.

      Schnittker’s plea hearing occurred on April 17, 2014. At

the start of the hearing, the government made one point “for the

record.”

      The Government: “[T]he plea is to Count 2, which is
      possession.  Count   1  is  for   receipt  of  child
      pornography. Just to state for the record, there are

                                            4
     two external hard drives. They both contain child
     pornography in this case. The Western Digital hard
     drive is the -- I’m sorry. The possession count is for
     the   Western  Digital  hard   drive  and   the  child
     pornography on that. The other hard drive is a Maxtor
     hard drive. The child pornography on that goes to the
     receipt count and won’t be the subject of the plea
     today.”

     The Court: “All right. Is the second hard drive the
     only hard drive the government is relying on for the
     purposes of the receipt charge?”

     The Government: “Yes.”

     The Court: “All right.” J.A. 26-27.

Later    during      the      hearing,     the        district     court     asked   the

government about the proof it would have used at trial on the

possession count. The government explained that it would have

relied   on    the    child    pornography          on    the   Western    Digital   hard

drive. Consistent with the statement of facts, the government

did not mention the Maxtor hard drive. J.A. 39-40.

     Also during the hearing the district court conducted a plea

colloquy      with   Schnittker.         The       district     court    confirmed   that

Schnittker’s plea was “knowing and voluntary,” that he did not

have “any difficulty understanding . . . anything about the[]

proceedings,”        that     he   did    “not       disagree     with    anything   the

government ha[d] told the Court about [his] conduct” and that he

“understood     everything”        contained         in   the    statement    of   facts.

J.A. 43, 29, 41. At the conclusion of the hearing, Schnittker

pled guilty to Count 2.


                                               5
     On April 24, 2014, the government obtained a superseding

indictment. This indictment differed from the first indictment

only in that it moved the start date of the unlawful activity

covered by Count 1 forward from January 2011 to April 2010.

Shortly    after         obtaining      the        superseding        indictment,          the

government       moved     to    dismiss      that      indictment’s         Count    2,    as

Schnittker       had     already    pled     guilty        to    possession      of    child

pornography under the first indictment.

     A    few    days     later,     the    government           filed   a    Rule    404(b)

notice,    stating        that     it      would     use        Schnittker’s      plea      to

possession      of     child    pornography        on   the      Western     Digital       hard

drive to prove in the upcoming trial that Schnittker received

child pornography on the Maxtor hard drive.

     At    Schnittker’s            bench      trial      for       receipt       of    child

pornography the government presented evidence showing that the

Maxtor    hard    drive        contained    child       pornography.         A   government

witness acknowledged that the Maxtor hard drive contained child

pornography files that were also on the Western Digital hard

drive, but she also confirmed that there were “a lot of files

that were not duplicates.” J.A. 162-63. And in its response to

Schnittker’s motion to dismiss on double jeopardy grounds, the

government pointed to the spreadsheets it had produced showing

that the Maxtor hard drive contained files different from those

on the Western Digital hard drive.

                                              6
      At the close of the government’s evidence, Schnittker moved

to    dismiss     the     superseding     indictment,       claiming     that     his

prosecution under Count 1 violated the Double Jeopardy Clause.

Specifically,      Schnittker        argued   that    his   plea   to    possession

under Count 2 covered both the Western Digital hard drive and

the Maxtor hard drive, and that this plea, in conjunction with

the   date   change       in   the    superseding     indictment,       barred    the

government from prosecuting and convicting him for receipt under

Count 1. The district court took briefing on the double jeopardy

question and, on August 18, 2014, issued a written order denying

Schnittker’s motion.

      At   the    same    time   that    it   ruled    on   Schnittker’s       double

jeopardy motion, the district court denied Schnittker’s Rule 29

motion for judgment of acquittal, finding that the evidence the

government       had    presented    relating   to    the    Maxtor     hard     drive

allowed a reasonable trier of fact to make a finding of receipt

of child pornography beyond a reasonable doubt. The district

court found Schnittker guilty of receipt of child pornography

under Count 1 the following day, and entered judgment on Count 1

and Count 2 on November 21, 2014. Schnittker timely appealed,

and continues to argue that his earlier guilty plea under Count

2 barred the government’s later prosecution and conviction under

Count 1.



                                          7
                                          II.

      We review de novo questions concerning the Double Jeopardy

Clause. United States v. Studifin, 240 F.3d 415, 418 (4th Cir.

2001). That clause protects persons from being “subject for the

same offence to be twice put in jeopardy of life or limb.” U.S.

Const. amend. V. One aspect of this protection prohibits the

government from subjecting a person to “multiple punishments for

the same offense.” Ohio v. Johnson, 467 U.S. 493, 498 (1984);

Missouri     v.     Hunter,    459     U.S.       359,      366-67       (1983).   This

prohibition attaches if the subject offenses “are in law and in

fact the same offense.” United States v. Crew, 538 F.2d 575, 577

(4th Cir. 1976); see also Blockburger v. United States, 284 U.S.

299, 304 (1932).

      As the government notes, Appellee’s Br. at 8-9, our sister

circuits appear to agree that possession of child pornography is

a   lesser-included        offense   of    receipt       of      child    pornography,

reasoning    that    the    crime    of   possession        of    child    pornography

under   18   U.S.C.     § 2252(a)(4)           does   not     contain      an   element

different from the elements that constitute the crime of receipt

of child pornography under 18 U.S.C. § 2252(a)(2). United States

v. Benoit, 713 F.3d 1, 14 (10th Cir. 2013) (reviewing cases).

Assuming without deciding that the subject offenses in this case

are the same in law, we turn to the question of whether the two



                                           8
offenses with which Schnittker was charged are also the same in

fact.

       “To determine whether two offenses . . . are the same in

fact,     a   court    must      ascertain      whether        a    reasonable     person

familiar with the totality of the facts and circumstances” would

construe the count to which the defendant pled guilty “to cover

the offense charged” later in the prosecution. See United States

v.    Olmeda,   461    F.3d      271,     282   (2d     Cir.       2006).   This     is    an

“objective” inquiry. Id. And it is not limited to the indictment

language      only,    but      extends    to    “the      entire     record”      of     the

proceedings. Benoit, 713 F.3d at 17. Importantly, the inquiry

must focus on what a reasonable person would understand at the

time the defendant entered his plea, because that is the time at

which jeopardy attaches. Olmeda, 461 F.3d at 282.

       Our review of the record in this case leads us to conclude

that an objective person in Schnittker’s position would have

understood that he was pleading guilty to possession of child

pornography     only       in   regard    to    the    child       pornography     on     the

Western Digital hard drive. Admittedly, Count 1 and Count 2 of

the   indictment      referred       generally        to   child     pornography,         the

indictment’s forfeiture clause referenced both hard drives, and

the     statement     of     facts   supporting         Schnittker’s        guilty      plea

contained an open-ended reservation provision. But these points

are not enough to overcome the mass of evidence demonstrating

                                            9
that, at the time Schnittker pled guilty, a reasonable person

would know full well that he was pleading guilty only in regard

to the child pornography on the Western Digital hard drive.

       As detailed above, once Schnittker disclosed his intention

to plead guilty to Count 2, the government made it “express”

that Schnittker’s guilty plea would be based only on the child

pornography on the Western Digital hard drive. Moreover, the

government then produced spreadsheets delineating the different

file    names     on    the   respective    hard    drives     to   make   abundantly

clear      that   the    child      pornography    on   the    Maxtor      hard   drive

supported       Count    1    and   the   child    pornography      on   the   Western

Digital hard drive supported Count 2.

       The government emphasized this point again in open court

just before Schnittker tendered his guilty plea in regard to the

possession count. 1 Finally, both defense counsel and Schnittker

signed     a   statement      of    facts   in    connection    with     Schnittker’s

guilty plea that named only the Western Digital hard drive, and

the government mentioned only that hard drive when it outlined

for the district court the evidence it would have used were

       1
       The Supreme Court has directed lower courts not to rely on
a   defendant’s   “supposed  acquiescence   to  a   prosecutorial
statement” when identifying the scope of a prior crime for
purposes of the Armed Career Criminal Act. Descamps v. United
States, 133 S. Ct. 2276, 2289 (2013). In this case, though, we
do not face such an issue, because an objective review of the
record makes clear that Schnittker accepted the prosecutor’s
statement.


                                            10
Schnittker to have gone to trial on the possession count. All of

this compels us to conclude that a reasonable person familiar

with   the   totality   of     the   facts   and   circumstances   would    have

understood that he was pleading guilty only in regard to the

child pornography on the Western Digital hard drive.

       Having ascertained the scope of Schnittker’s plea, we must

now    determine     whether    the    unlawful     conduct   encompassed     by

Schnittker’s later prosecution for receipt of child pornography

is distinct from that which was covered by his earlier plea. The

federal courts of appeals have relied on various manifestations

of distinct conduct to determine that separate counts were not

the same in fact. See United States v. Teague, 722 F.3d 1187,

1191 (9th Cir. 2013) (separate CDs and hard drives may support

separate conduct); Benoit, 713 F.3d at 16-17 (separate images

may    support     separate    conduct);     see   also   United   States    v.

Halliday, 672 F.3d 462, 470-71 (7th Cir. 2012) (separate videos

or dates may support separate conduct); United States v. Bobb,

577 F.3d 1366, 1375 (11th Cir. 2009), cert. denied, 560 U.S. 928

(2010) (separate images or dates may support separate conduct).

       In United States v. Polouizzi, the Second Circuit rejected

the defendant’s double jeopardy claim because it concluded that

no double jeopardy violation exists so long as “the possession

conviction was based on an image the receipt of which did not

form the basis of the receipt conviction.” 564 F.3d 142, 159 (2d

                                        11
Cir. 2009). This is a sensible tack, because different images or

videos    display    different    human   beings   or   different   sexual

activities. The images are thus in a genuine sense distinct.

Distinctiveness is in fact all the more likely in cases such as

this where the child pornography collection is truly massive.

     In    this     case,   for   example,    Schnittker    admitted   to

possessing over 1,000 images or videos of child pornography on

the Western Digital hard drive, while the district court made

clear that it was relying on four videos on the Maxtor hard

drive as the basis for its judgment on the receipt conviction.

Moreover, a government witness testified that many files on the

Maxtor hard drive “were not duplicates” of the files on the

Western Digital hard drive. Consequently, because the defendant

admitted to possessing over one thousand images or videos of

child pornography, at least some of which did not ground the

receipt conviction, there is more than sufficient proof in the

record that “the possession conviction was based on an image

the receipt of which did not form the basis of the receipt

conviction.” Polouizzi, 564 F.3d at 159.

     In sum, the two offenses at issue in this case were not the

same in fact. The prosecution and conviction of Schnittker under




                                     12
Count 1 following his guilty plea under Count 2 thus did not

contravene the Fifth Amendment. 2

                                III.

     The prosecution and conviction of Michael Schnittker for

receipt   of   child   pornography    in   violation   of   18    U.S.C.

§ 2252(a)(2) was premised on facts distinct from those covered

by Schnittker’s guilty plea to possession of child pornography

in violation of 18 U.S.C. § 2252(a)(4). Accordingly, Schnittker

was subject to multiple punishments for multiple offenses, not

multiple punishments for the same offense.

     Schnittker’s only argument on appeal concerns the double

jeopardy question. Because we find no double jeopardy violation,

we affirm the district court’s judgment.

                                                                 AFFIRMED




     2 Schnittker also raises a successive prosecution argument
related to the date change in the superseding indictment. We
agree with the district court, however, that “given the Court’s
conclusion that the receipt charge did not involve the same
offense as the possession charge to which the defendant pled
guilty, it is not necessary for the Court to consider whether
the superseding indictment in fact initiated a new prosecution,
as the defendant urges, or was simply part of the same
proceeding, in which case Ohio v. Johnson [467 U.S. 493 (1984)]
would seem to control.” Mem. Op. at 3 n. 1, J.A. 257.


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