                   United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-1345
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                  Scott Jacob Smith

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                           Submitted: September 28, 2018
                             Filed: December 11, 2018
                                   ____________

Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       A jury convicted Scott Jacob Smith of Receipt of Visual Depictions of Minors
Engaging in Sexually Explicit Conduct and Possession of Child Pornography in
violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B), (b)(1), and (b)(2). The district court1


      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
sentenced Smith to concurrent terms of 235 months imprisonment on each count.
Smith appeals, arguing the evidence was insufficient to convict; the jury’s general
verdict denied him his right to a unanimous verdict; his conviction of both receipt and
possession violated the Double Jeopardy Clause as construed in United States v.
Morrissey, 895 F.3d 541 (8th Cir. 2018), and prior child pornography cases; and the
district court erred in imposing a two-level enhancement for knowing distribution of
child pornography. We agree with the district court’s resolution of complex
unanimous verdict and double jeopardy issues and therefore affirm.

                          I. Sufficiency of the Evidence.

       On March 15, 2013, using the “ARES Roundup” law enforcement computer
program, Department of Homeland Security Special Agent Aaron Simon downloaded
five suspected child pornography files from a computer he traced to an IP address in
Indianola, Iowa. The registered owner was Scott Jacob Smith. After confirming the
files contained what a federal prosecutor agreed was child pornography, Agent Simon
conducted a warrant search at the Smith residence, seized a computer in Smith’s
office, and conduced a consensual interview during which Smith wrote a short
statement. Smith said the computer was password protected and used only by Smith
and his wife, admitted he used ARES search terms related to child pornography but
deleted any child images he saw, and admitted he used a “disc scrubber” program that
can wipe and shred specific computer files.

       Forensic examination of Smith’s computer did not find the files Agent Simon
downloaded in March but recovered the name of a deleted file that matched the
downloads. The examiners recovered images of prepubescent minors and videos of
child pornography in an ARES “shared folder” in the computer’s “Scott” directory.
They also found records of more than one hundred deleted files with names indicative
of child pornography in the ARES “shared folder,” and hundreds more in the ARES



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“downloads folder.” The deleted file names contained search terms unique to child
pornography that Smith had admitted using.

       Smith was charged with receipt, possession, and distribution of child
pornography. At trial, the government’s evidence included copies of the files
downloaded by Agent Simon in March, three images of prepubescent minors and a
video saved in the ARES “shared folder,” the names of 105 child pornography movie
files saved to that folder, the titles of hundreds of files received in the ARES
“download folder,” hundreds of ARES search keywords used to search for child
pornography on the file-sharing program, and the names of files shared and partially
downloaded via ARES. Smith’s wife testified for the defense that the computer was
not password protected and she suspected her teenage son was accessing child
pornography. The jury convicted Smith of receipt and possession but found him not
guilty of the distribution charge.

        On appeal, Smith argues the evidence was insufficient because the government
failed to prove beyond a reasonable doubt that he was the user who accessed child
pornography; failed to prove knowing receipt because it did not introduce actual
images from the “downloads” folder containing child pornography; failed to prove
Smith’s use of search terms immediately preceded creation of the images introduced
at trial; and failed to prove Smith knowingly possessed the images downloaded by
Agent Simon but not found on the computer when it was forensically examined.

       We review the sufficiency of the evidence de novo. We view the evidence in
the light most favorable to the jury’s verdict, accepting all reasonable inferences that
support the government and resolving conflicts in its favor. Morrissey, 895 F.3d at
549 (citation omitted). Reversal is proper “only if no reasonable jury could have
found the defendant guilty beyond a reasonable doubt.” Id. (quotation omitted).
Here, we agree with the government that Smith’s contentions on appeal ignore his
admissions to Agent Simon -- that the computer was password protected, that he was

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an intermediate-to-advanced computer user who understood the file-sharing ARES
program and common child pornography search terms, and that his computer used file
deletion programs. Based on these admissions, the child pornography images
introduced at trial, and the substantial evidence that many other images had been
deleted, a reasonable jury could find that Smith knowingly attempted to and did
receive and possess child pornography.

                         II. The Unanimous Verdict Issue.

       The child pornography receipt and possession offenses impose penalties on a
person who “violates, or attempts or conspires to violate,” the substantive offenses.
18 U.S.C. § 2252(b)(1) and (2). Rule 31(c)(3) of the Federal Rules of Criminal
Procedure provides: “A defendant may be found guilty of any of the following . . .
(3) an attempt to commit an offense necessarily included in the offense charged, if the
attempt is an offense in its own right.”

       The Superseding Indictment charged that Smith “did knowingly receive, and
attempt to receive, child pornography” (Count 2), and “did knowingly possess, and
attempt to possess, at least one matter which contains . . . a visual depiction of a
prepubescent minor and a minor who had not attained the age of 12 years” (Count 3).
The district court instructed the jury that one element of the charged receipt and
possession offenses was that Smith “knowingly received” or “knowingly possessed”
visual depictions of minors engaged in sexually explicit conduct. The instructions
further stated that the jury must “unanimously agree which particular visual depiction
or depictions . . . were received” and possessed. A separate instruction stated, “The
crimes charged in Counts Two and Three of the Indictment are also charged as
attempts,” and then stated, “A person may be found guilty of an attempt if he intended
to commit the underlying crime . . . and voluntarily and intentionally carried out some
act which was a substantial step toward that crime.” The Verdict Form, signed by all
twelve jurors, stated, “We, the jury, find the Defendant, Scott Jacob Smith, guilty of

                                         -4-
the crime of receipt of child pornography, as charged in Count Two,” and “guilty of
the crime of possession of child pornography, as charged in Count Three.”

       On appeal, Smith argues the district court’s jury instructions and verdict form
violated Smith’s Sixth Amendment right to a unanimous verdict “because, for both
the possession and receipt counts, the jury instructions blurred the requirements for
the completed offense versus attempt.” Therefore, Smith argues, “reverse and remand
for a new trial on both counts is required.” Because Smith failed to object to the
verdict form or jury instructions at trial, our review is for plain error. United States
v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011). Smith “must show that there was an
error, the error is clear or obvious under current law, the error affected the party’s
substantial rights, and the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (citation omitted); see United States v. Olano,
507 U.S. 725, 735 (1993).

       This issue begins with the indictment. An indictment that joins two or more
separate offenses in a single count is duplicitous, which presents a problem because
“the jury may convict a defendant without unanimous agreement on the defendant’s
guilt with respect to a particular offense.” United States v. Paul, 885 F.3d 1099, 1104
(8th Cir. 2018) (quotation omitted). Implicit in Smith’s argument on appeal is the
notion that an attempt and the completed offense are separate offenses that must be
separately charged. However plausible that contention may seem at first blush, our
court rejected it over one hundred years ago:

            It is said that this count is bad for duplicity, as two felonies are
      charged, one, the act of defrauding, and, the other, the attempt to
      defraud, both under section 17. This contention is answered [rejected]
      by the case of Crain v. United States, 162 U.S. 625.

May v. United States, 199 Fed. 53, 60 (8th Cir. 1912); accord United States v. Boyle,
700 F.3d 1138, 1145 (8th Cir. 2012), cert. denied, 569 U.S. 975 (2013).

                                          -5-
       Though the joinder is not improper, joining conspiracy, attempt, and substantive
offenses in a single count can raise duplicity and evidentiary issues, as the Third
Circuit discussed in United States v. Starks, 515 F.2d 112, 116-18 (3d Cir. 1975).
However, that Court subsequently concluded, “a single count of an indictment should
not be found impermissibly duplicitous whenever it contains several allegations that
could have been stated as separate offenses, but only when the failure to do so risks
unfairness to the defendant.” United States v. Root, 585 F.3d 145, 155 (3d Cir. 2009).
If a count permissibly joins conspiracy or attempt and the substantive offense, as in
this case, any risk of unfair duplicity to the defendant can be cured in various ways,
for example, by the government electing to pursue only one of the alternatives
charged, or by jury instructions and a verdict form that protect the defendant’s right
to a unanimous jury.

       Here, after review of the entire trial record, we conclude there was no risk of
unfair duplicity, and therefore no plain error, in the way Count 2 and Count 3 were
submitted to the jury. There is no indication that the instructions “misled the jury or
had a probable effect on the jury’s verdict.” United States v. Daniel, 887 F.3d 350,
359 (8th Cir. 2018). There was overwhelming evidence that Smith committed both
attempt and completed offenses of child pornography receipt and possession. Thus,
even if some jurors found that he attempted to receive or possess, and others found he
in fact received or possessed, the jury unanimously found he violated the offenses
Congress defined in 18 U.S.C. § 2252(a)(2) and (a)(4)(B). Thus, a well-established
general principle applies: “Because the jury returned a general verdict of guilty, we
must uphold the jury’s verdict if the evidence is sufficient to support either of the
charged theories.” Boyle, 700 F.3d at 1145 (citation omitted). In addition, the jury
instructions included a unanimity instruction, separate instructions for receipt and
possession that told the jury it must unanimously agree that particular visual
depictions were received and possessed, and a separate instruction accurately defining



                                         -6-
the elements of an unlawful attempt. We presume that juries follow the court’s
instructions. Conley v. Very, 450 F.3d 786, 788 (8th Cir. 2006).

       For these reasons, we conclude the instructions and verdict form were not
plainly erroneous. Nor did they affect Smith’s substantial rights because there is no
reasonable probability the outcome of the trial would otherwise have been different.
And the district court’s decision to follow the common practice of joining attempt and
completion charges in a single count did not seriously affect the fairness, integrity, or
public reputation of the judicial proceedings.

                          III. The Double Jeopardy Issue.

       Smith argues the district court violated his rights under the Double Jeopardy
Clause when it failed to instruct the jury that it could not convict Smith of knowing
receipt and possession of child pornography based on the same facts. Though the
Double Jeopardy Clause is part of the Fifth Amendment, the inquiry turns on
legislative intent. “[T]o determine whether Congress intended the same conduct to be
punishable under two criminal provisions [t]he appropriate inquiry under Blockburger
is ‘whether each provision requires proof of a fact which the other does not.’” Ball
v. United States, 470 U.S. 856, 861 (1985), quoting Blockburger v. United States, 284
U.S. 299, 304 (1932).

       In a number of recent cases, we have applied the Double Jeopardy Clause to
child pornography receipt and possession offenses, explaining:

             To prove a double jeopardy violation, a defendant must
      demonstrate that he was convicted of two offenses that are in law and
      fact the same offense. Possession of child pornography is a lesser-
      included offense to receipt of child pornography. Convictions for both
      possession and receipt of the same image violate the double jeopardy
      clause.

                                          -7-
United States v. Zavesky, 839 F.3d 688, 695 (8th Cir. 2016), cert. denied, 137 S. Ct.
1388 (2017), citing United States v. Muhlenbruch, 634 F.3d 987, 1002 (8th Cir.
2011). “While a defendant may be tried for lesser and greater offenses during the
same trial, a judgment of conviction and punishment for both violates the double
jeopardy clause.” United States v. Carpenter, 422 F.3d 738, 747 (8th Cir. 2005)
(citation omitted) , cert. denied, 546 U.S. 1128 (2006). Possession is considered the
lesser-included offense because knowing receipt of child pornography subjects a
defendant to more serious punishment -- a five year mandatory minimum and twenty
year statutory maximum sentence, versus no minimum and a ten year maximum for
knowing possession. See United States v. Miller, 527 F.3d 54, 81 (3d Cir. 2008)
(Rendell, J., dissenting); 18 U.S.C. § 2252(b)(1) and (2).

       A critical fact distinguishes this case from our prior cases. In Count 3, the
indictment charged Smith with knowing possession of “a visual depiction of a
prepubescent minor and a minor who had not attained the age of 12 years.”
Conviction of that enhanced charge subjected Smith to a twenty year maximum
sentence, the same statutory maximum as knowing receipt. Moreover, the district
court instructed the jury that, to convict Smith under Count 3, an “essential element”
was that he “knew the minors were prepubescent or under 12 years of age,” an
element not included in the knowing receipt instruction in Count 2. Thus, as
submitted to the jury, knowing possession was not a lesser included offense to
knowing receipt. Rather, under the Blockburger test, knowing possession required
proof of an essential fact which knowing receipt did not. See Sansone v. United
States, 380 U.S. 343, 350 (1965) (“A lesser-included offense instruction is only proper
where the charged greater offense requires the jury to find a disputed factual element
which is not required for conviction of the lesser-included offense.”).

        Also significant is the way this issue developed in the district court. Prior to
trial, defense counsel filed a motion to merge Counts 2 and 3 for sentencing. In

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response to the court’s question addressing that issue, the prosecutor stated that “some
of the same images will be relevant [to both counts], but they are not identical.” The
district court stated, “Okay. We’ll probably need a special interrogatory if that’s the
issue.” Citing our Muhlenbruch and Zavesky decisions, the prosecutor replied, “I’m
fine with a special interrogatory. . . . I believe once we get into the evidence that it will
be clear . . . we have different dates charged in the indictment as far as when each of
these crimes occurred . . . .”

      At the end of the first day of trial, before the following day’s instructions
conference, the district court advised counsel:

                In looking at the question of whether or not to use special
       interrogatories as to Counts 2 and 3, they do have different elements that
       must be established. Count [3], of course, has that 12-year-old language
       or the prepubescent minor language in it which, of course, Count 2 does
       not. . . . [A]nd, as [the prosecutor] pointed out, the dates are different, so
       my inclination at this time would be instruct the jury, as the model
       instructions provide, that they have to unanimously agree on which
       particular image before they can convict, but not to ask them to do any
       kind of special interrogatory on those images.         [Tr 169]

The following morning, at the instructions conference, defense counsel stated:

              I have had the opportunity to review the proposed jury instructions
       that the Court presented to the parties last night. I did look in particular
       at the Final Instruction[s] [defining the elements of the receipt and
       possession offenses and defining possession], and I do think that the
       Court has it correct when the Court added what is a parenthetical in the
       uniform jury instructions . . . about the jury . . . unanimously agree[ing]
       with the particular visual depiction or depiction[s] of minors, and that
       would be for the receipt and the possession because of the issue that we
       talked about earlier.



                                            -9-
             So we are in agreement with that, and we are also in agreement
      with the verdict form, Your Honor.

      At closing argument, while the prosecutor did not limit the evidence supporting
Counts 2 and 3 to particular images, in arguing Count 2 he referenced files that could
not be recovered forensically from the computer, including the images downloaded
by Agent Simon in March, introduced as Exhibit 2, and argued: “They were shredded,
but during that time frame, [Smith] was going out and knowingly receiving and
attempting to receive child pornography.” Turning to Count 3, the prosecutor again
showed the jury images of prepubescent minors found when the computer was
forensically searched, introduced as Exhibit 7, and argued these images proved
knowing possession of depictions of prepubescent or under age 12 minors.

       The Double Jeopardy Clause bars convicting a defendant of separate offenses
based on the same facts (unless Congress intended multiple convictions). It is clear
that “proof of receipt of child pornography necessarily includes proof of possession
of child pornography.” Morrissey, 895 F.3d at 548 (quotations omitted). In
Morrissey, 895 F.3d at 548, as in United States v. Huether, 673 F.3d 789, 798 (8th Cir.
2012), the evidence, closing arguments, and jury instructions did not distinguish
between the images the defendant allegedly received and possessed. Therefore, we
remanded with instructions to vacate one conviction because the jury was not
instructed that they cannot convict for both offenses based on the same facts.

       Obviously, one way to protect Smith’s double jeopardy right was to require the
jury to complete special interrogatories identifying which images were the basis for
its guilty verdicts on Counts 2 and 3. The district court noted this procedure at the
start of trial, and the government stated it would not object. Near the end of trial, the
district court stated it was not inclined to use special interrogatories, because the two
offenses as charged and submitted were not the same -- knowing possession had the
additional element of one or more images of prepubescent minors. The next day,


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defense counsel did not object to the court’s instructions and verdict form, expressly
agreeing that instructing the jury to unanimously agree on particular images to convict
Smith on each count resolved the issue. Thus, on this record, the issue raised on
appeal was waived. See Zavesky, 839 F.3d at 695-96.

       Moreover, even if we reviewed this issue for plain error, there was none. The
most that can be said is the jury might have convicted Smith for knowing receipt of
the same images of prepubescent minors it found he knowingly possessed. But the
prosecutor’s closing argument focused the jury on the shredded files previously
downloaded by Agent Simon as establishing knowing receipt, as charged in Count 2,
and on the images of prepubescent minors still in the ARES “shared folder” when the
computer was forensically examined as establishing knowing possession, as charged
in Count 3. Because there was sufficient evidence supporting two theories that did not
violate the Double Jeopardy Clause, the district court did not plainly err, nor affect
Smith’s substantial rights, in submitting the case in this manner. The evidence and
procedural history was significantly different in Morrissey, 895 F.3d at 548, Huether,
673 F.3d at 799, and Muhlenbruch, 634 F.3d at 1004. Indeed, but for evidentiary
complexity caused by Smith’s partially successful file shredding, the evidence and
defendant’s waiver of special interrogatories made this case on all fours with our
decision in Zavesky, 839 F.3d at 695-96.

             IV. Sentence Enhancement for Knowing Distribution.

       Smith argues the district court clearly erred in imposing a two-level sentence
enhancement because he “knowingly engaged in distribution” of child pornography.
USSG § 2G2.2(b)(3)(F); see United States v. Grimes, 888 F.3d 1012, 1017 (8th Cir.
2018) (standard of review). Though the government failed to prove knowing
distribution beyond a reasonable doubt at trial, its burden at sentencing was only to
prove this enhancement by a preponderance of the evidence. United States v.
O’Brien, 560 U.S. 218, 224 (2010).

                                         -11-
       Agent Simon downloaded five files containing child pornography from the
ARES “shared folder” on Smith’s computer. The government’s evidence also
included three child pornography images saved in the “shared folder” and the names
of child pornography movie files saved to that folder. Thus, it is undisputed that
Smith’s computer in fact distributed child pornography. Smith argues the government
failed to prove he knowingly engaged in distribution because the images downloaded
by Agent Simon were not found when the computer was forensically examined
months later. He relies on an amendment to section 2G2.2(b)(3)(F), effective
November 1, 2016, that added the “knowingly engaged” element to require “a
showing that the defendant knew of the file-sharing properties of the program.” 2018
USSG App. C, Amend. 801 at p.136. The amended guideline applies if the defendant
“induced, procured, or willfully caused the distribution.” § 2G2.2 comment. (n.2).

       Smith admitted to Agent Simon that he was a sophisticated user of ARES and
other file-sharing computer programs, knew the ARES program automatically shared
child pornography images saved to the shared folder, and used programs designed to
shred incriminating files. Despite extensive shredding, the forensic evidence showed
a substantial number of child pornography files in the shared folder. Thus, the
evidence established that Smith engaged in knowing distribution as defined in the
amended guideline and applied in United States v. Nordin, 701 F. Appx. 545, 546-47
(8th Cir. 2017). Smith urges us to reject this unpublished decision as contrary to the
guideline. We decline to do so. The district court did not clearly err in finding by a
preponderance of the evidence that Smith knowingly engaged in the distribution of
child pornography from his ARES file-sharing program.

      The judgment of the district is affirmed.
                     ______________________________




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