                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2008

USA v. Miller
Precedential or Non-Precedential: Precedential

Docket No. 06-5187




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                                        PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   __________

                       No. 06-5187
                       __________

             UNITED STATES OF AMERICA

                            v.

                DONALD R. MILLER JR.,
                                 Appellant
                    __________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
             (D.C. Criminal No. 04-CR-0027)
         District Judge: Honorable Malcolm Muir
                          ______

                 Argued February 1, 2008

   Before: RENDELL and CHAGARES, Circuit Judges,
              and POLLAK,* District Judge.
                   (Filed: June 2, 2008)
____________
   * Honorable Louis H. Pollak, District Judge for the United
      States District Court of the Eastern District of
      Pennsylvania, sitting by designation.
Ronald A. Krauss, Esquire [ARGUED]
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, Pennsylvania 17101-0000
Counsel for Appellant
Donald R. Miller Jr.


Christian A. Fisanick, Esquire [ARGUED]
Office of United States Attorney
235 North Washington Avenue
P. O. Box 309, Suite 311
Scranton, Pennsylvania 18503-0000

Theodore B. Smith, III, Esq.
Office of United States Attorney
228 Walnut Street, Suite 220
P. O. Box 11754
Harrisburg, Pennsylvania 17108-0000
Counsel for Appellee
United States of America




                         ______

               OPINION OF THE COURT
                       ______




                            2
POLLAK, District Judge:

       Pursuant to a jury trial in the District Court for the
Middle District of Pennsylvania, Donald R. Miller was found
guilty of (1) receiving child pornography, in violation of
18 U.S.C. § 2252A(a)(2), (2) possessing the same images of
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B),
and (3) marijuana possession, in violation of 21 U.S.C. § 844(a).
Miller was sentenced to concurrent terms of 46 months’
imprisonment on the two child pornography counts and a
concurrent term of 12 months’ imprisonment on the marijuana
count. In calculating the applicable sentencing range under the
Sentencing Guidelines, the District Court found that Miller, in
the course of his testimony at trial, had committed perjury, and
accordingly applied a two-level sentencing enhancement for
obstruction of justice, pursuant to U.S.S.G. § 3C1.1 (2003). On
appeal, Miller argues (1) that there was not sufficient evidence
to support his conviction for receiving child pornography,
(2) the Constitution’s double jeopardy clause barred entry of
separate convictions for receiving and possessing the same
images of child pornography, and (3) the record does not
support the District Court’s finding that Miller committed
perjury.

      We conclude that Miller’s conviction for receiving child
pornography was supported by substantial evidence. However,
we further hold that (a) the double jeopardy clause barred
convictions for both receiving and possessing the same images

                               3
of child pornography, and (b) the entry of guilty verdicts on both
of these counts was plain error. We also hold that Miller’s
testimony regarding his collection of adult pornography was
neither willfully false nor material, as those terms are to be
understood in the context of perjury, and thus did not support a
sentencing enhancement. Accordingly, we will vacate the
District Court’s judgment and remand this case for re-sentencing
consistent with this opinion.

                                I.

       In January 2004, the FBI searched Miller’s home while
investigating the uploading of child pornography onto a website
hosted by Prime Media, a company in Utah. In the basement of
the house, the agents found a zip disk containing 1200-1400
images,1 twenty of which, according to the government, depicted
child pornography. (The District Court later found, for the
purpose of calculating Miller’s sentence, that eleven of these
twenty images constituted child pornography). The agents also
found 55.5 grams of marijuana in a jewelry box in Miller’s
wife’s bedroom.




  1
    A “zip disk” is a portable storage device that looks similar
to a conventional 3.5-inch “floppy” disk, but has significantly
greater storage capacity than a floppy disk. A zip disk may be
used on a computer equipped with a “zip drive.”

                                4
        In the month of the search, January 2004, a grand jury
charged Miller with two counts of child pornography relating to
the images uploaded onto the Prime Media website. In
November 2004, a five-count superseding indictment charged
Miller with: (count one) receiving child pornography, in
violation of 18 U.S.C. § 2252A(a)(2), based on the images
found on the zip disk; (count two) transporting and shipping
child pornography, in violation of 18 U.S.C. § 2252A(a)(1);
(count three) receiving and distributing child pornography, also
in violation of 18 U.S.C. § 2252A(a)(2); (count four) possessing
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B),
based on the images found on the zip disk; and (count five)
marijuana possession, in violation of 21 U.S.C. § 844(a).

       At trial, the jury found Miller guilty both of receiving
child pornography stored on the zip disk, count one, and of
possessing the same images of child pornography, count four.
The jury also found Miller guilty of marijuana possession, count
five. However, the jury acquitted Miller of counts two and
three. Miller timely filed a Rule 29(c) motion for judgment of
acquittal, which the District Court denied.

       Miller’s presentence investigation report (“PSR”),
prepared by the Probation Office, recommended that the District
Court apply three two-level enhancements to Miller’s base
offense level under the Guidelines. Miller objected to these
enhancements, and the District Court held an evidentiary
hearing to address his objections. The District Court determined

                               5
that one of the recommended enhancements was inapplicable,2
but accepted the other two. The first of the two enhancements
was for possession of ten or more images of child pornography,
pursuant to U.S.S.G. § 2G2.2(b), based on the District Court’s
finding, by a preponderance of the evidence, that Miller
possessed eleven images of child pornography (including two
images that were duplicates of one another).

       The second enhancement was for obstruction of justice,
pursuant to U.S.S.G. § 3C1.1 (2003).3 The asserted obstruction
took place when, at trial, Miller was asked, in the course of
cross-examination regarding his collection of adult pornography:
“Did you have sadomasochistic pictures.” Appendix (“A.”) 311.
Miller replied: “Not that I’m aware of, no.” Id. Contending that
Miller’s answer was a deliberate falsehood, the government, at
the evidentiary hearing prior to the imposition of sentence,
presented five images depicting adults that were found on the


   2
     The PSR recommended an enhancement for possessing
pornographic material depicting children who are prepubescent
or under twelve years of age. The District Court determined that
the government had failed to prove by a preponderance of the
evidence that there was a factual basis for this enhancement.
       3
        The District Court applied the 2003 version of the
Guidelines, which was effective at the time of the offenses
charged in counts one and four of the superseding indictment,
rather than the 2006 version of the Guidelines, which was
effective at the time of Miller’s sentencing.

                               6
zip disk containing child pornography. The District Court, on
viewing the five images, concluded that they “could fairly be
described as sadomasochistic pornography.”               A. 21.
Accordingly, the District Court ruled that Miller’s answer at trial
constituted perjury and, therefore, was an obstruction of justice.

       The District Court entered separate judgments of
conviction for counts one (receiving child pornography), four
(possessing child pornography), and five (marijuana possession).
The District Court imposed concurrent sentences of 46 months
for each of the child pornography counts and a concurrent
sentence of 12 months for the marijuana possession count.4
Miller timely appealed.

                                II.

       We exercise plenary review over Miller’s sufficiency-of-
the-evidence claim. “In exercising that review, we must
interpret the evidence in the light most favorable to the


  4
    The “PROTECT Act of 2003” amended § 2252A to impose
a prison sentence of “not less than 5 years” for violations of
§ 2252A(a)(2), which previously carried no statutory minimum.
See H.R. Rep. No. 108-66, at 50-51 (2003) (Conf. Rep.), as
reprinted in 2003 U.S.C.C.A.N. 683, 685. The Act became
effective after the dates charged in count one of Miller’s
superseding indictment, and it was therefore inapplicable to
Miller’s offense.

                                7
government as the verdict winner,” United States v. Taftsiou,
144 F.3d 287, 290 (3d Cir. 1998), and “do not weigh evidence
or determine the credibility of witnesses in making [our]
determination.” United States v. Gambone, 314 F.3d 164, 170
(3d Cir. 2003) (internal quotation omitted).

       We review Miller’s double jeopardy claim for plain error
since he did not raise the issue before the District Court. See
United States v. Jackson, 443 F.3d 293, 301 (3d Cir. 2006).

        With respect to the District Court’s finding, for the
purpose of applying the Guidelines, that Miller committed
perjury, this court exercises plenary review over the District
Court’s interpretation of the Guidelines. See United States v.
Grier, 475 F.3d 556, 561 (3d Cir. 2007) (en banc) (“Under an
advisory Guidelines scheme, district courts should continue to
make factual findings by a preponderance of the evidence and
courts of appeals should continue to review those findings for
clear error.”).5 “When the application of the Guidelines presents


   5
     A number of years ago, this court held that a finding of
perjury, for purposes of sentencing, must be supported by “clear
and convincing” evidence. See United States v. Arnold, 106
F.3d 37, 43-44 (3d Cir. 1997). But that holding was based on
language in the commentary to U.S.S.G. § 3C1.1 that has since
been revised. Arnold’s holding has thus been abrogated and, as
we recognized in United States v. Johnson in addressing a
                                                  (continued...)

                               8
a mixed question of law and fact, ‘our standard and scope of
review takes on greater scrutiny, approaching de novo as the
issue moves from one of strictly fact to one of strictly law.’”
United States v. Felton, 55 F.3d 861, 864 (3d Cir. 1995)
(quoting United States v. Belletiere, 971 F.2d 961, 964 (3d Cir.
1992) (internal quotation omitted)).

                              III.

       Miller argues that there is not substantial evidence
proving that he received child pornography. In addressing this
claim, we must uphold a jury’s verdict “if there is substantial
evidence from which a rational trier of fact could find guilt
beyond a reasonable doubt.” United States v. Brown, 3 F.3d
673, 680 (3d Cir. 1993). Before evaluating the merits of this
claim and reciting the evidence relating to Miller’s conviction,
we must consider the government’s threshold contention that the
claim has been waived.




  5
   (...continued)
sentencing enhancement for perjury, “the facts underlying a
sentencing enhancement need only be proven by a
preponderance of the evidence.”       302 F.3d 139, 154
(3d Cir. 2002).

                               9
                               A.

       Miller first raised his sufficiency-of-the-evidence claim
before the District Court in a timely post-trial motion for
acquittal pursuant to Fed. R. Crim. P. 29(c). The government
contends that, though the motion was a proper vehicle for
presenting the claim to the District Court, the motion failed to
preserve the claim for appeal. To preserve a sufficiency-of-the-
evidence claim for appeal, the government argues, a defendant
must raise the issue at trial via a Rule 29(a) motion “[a]fter the
government closes its evidence or after the close of all the
evidence.” Fed. R. Crim. 29(a).

         The government’s argument finds no support in the
language of Rule 29(c). The rule provides that “[a] defendant
may move for a judgment of acquittal, or renew such a motion,
within 7 days after a guilty verdict or after the court discharges
the jury, whichever is later.” Fed. R. Crim. P. 29(c)(1). The
rule goes on to clarify that “[a] defendant is not required to
move for a judgment of acquittal before the court submits the
case to the jury as a prerequisite for making such a motion after
jury discharge.” Fed. R. Crim. P. 29(c)(3). These terms would
seem to authorize a court of appeals to exercise plenary review
over a claim raised in a Rule 29(c) motion without regard to
whether the claim was earlier raised in a Rule 29(a) motion. It
appears that each circuit court addressing this precise question
has so held. See United States v. Holland, 381 F.3d 80, 86 n.7
(2d Cir. 2004); United States v. Smith, 28 F.3d 619, 726 n.3

                               10
(7th Cir. 1994); United States v. Castro-Lara, 970 F.2d 976, 980
(1st Cir. 1992),6 abrogated on other grounds by Bailey v.
United States, 516 U.S. 137 (1995); United States v. Allison, 616
F.2d 779, 783-84 (5th Cir. 1980).7


  6
      The Castro-Lara court stated its position as follows:

         We feel confident that Rule 29(c) means precisely
         what it says. Consequently, even absent any
         motion for judgment of acquittal at trial, a
         defendant who files a timeous post-trial motion
         for acquittal stands on the same footing as a
         defendant who moves for acquittal at the close of
         all the evidence; and the former is, therefore,
         entitled to the benefit of the same standard of
         appellate review as the latter.

970 F.2d at 980
  7
     The government cites cases from two other circuits that, it
contends, support its position. See United States v. Chance, 306
F.3d 356, 368-69 (6th Cir. 2002); United States v. Ward, 914
F.2d 1340, 1346 (9th Cir. 1990). The government is correct that
these courts stated, respectively, that a sufficiency-of-the-
evidence claim is waived “if the defendant failed to make a Rule
29 motion for judgment of acquittal at the end of the
prosecution's case-in-chief and at the close of the evidence,”
Chance, 306 F.3d at 368, and that “[i]n order to preserve this
issue on appeal, the defendant must move for a judgment of
                                                   (continued...)

                                11
        This court, without confronting the question directly,
appears to have treated a Rule 29(c) motion as preserving a
sufficiency-of-the evidence claim irrespective of whether the
claim was earlier raised at trial. In United States v. Thayer,
201 F.3d 214, 218-19 (3d Cir. 1999), without specifying
whether the defendant had filed a Rule 29(a) motion, we stated
that the defendant had raised a sufficiency-of-the-evidence claim
in a Rule 29(c) motion. On appeal, the defendant reasserted the


  7
    (...continued)
acquittal during the trial pursuant to Fed. R. Crim. P. 29(a).”
Ward, 914 F.2d at 1346. However, neither of these courts
clarified whether the defendant had filed a Rule 29(c) motion.
The Sixth Circuit, in cases decided before Chance, had
exercised plenary review over sufficiency-of-the-evidence
claims preserved by a Rule 29(c) motion without stating whether
the defendant had filed a Rule 29(a) motion. See United States
v. Al-Zubaidy, 283 F.3d 804, 808 (6th Cir. 2002); United States
v. Wuliger, 981 F.2d 1497, 1509 (6th Cir. 1992). The Sixth
Circuit’s practice following Chance appears to be unclear. See,
e.g., United States v. Davis, 473 F.3d 680 (6th Cir. 2007)
(addressing commerce clause argument raised in Rule 29(c)
motion without specifying the standard of review, but stating
that it exercised plain error review over separate commerce
clause argument that was not raised in Rule 29(c) motion). The
Ninth Circuit, in a case following Ward, exercised plenary
review over an argument raised in a Rule 29(c) motion without
stating whether it had earlier been raised in a Rule 29(a) motion.
See United States v. Garcia, 497 F.3d 964, 967 (9th Cir. 2007).

                               12
sufficiency-of-the-evidence claim, and also put forth other
claims that he did not raise before the district court. In
articulating the applicable standard of the review, we stated that:

       Where the issues raised on appeal are preserved at
       trial, or through a timely motion for acquittal
       under Fed. R. Crim. P. 29(c), we will overturn a
       jury verdict only when the record contains no
       evidence, regardless of how it is weighted, from
       which the jury could find guilt beyond a
       reasonable doubt . . . . But issues on appeal which
       were not raised before the District Court, we will
       review for plain error.

201 F.3d at 218-19 (internal quotation omitted). We then
proceeded to exercise plenary review over the defendant’s
sufficiency-of-the-evidence claim. See id. at 221.

        The government argues that we are compelled to depart
from Thayer’s statement that we exercise plenary review over
claims “preserved at trial, or through a timely motion for
acquittal under Fed. R. Crim. P. 29(c).” Its argument is
grounded in our statement, in a case more recent than Thayer,
that a sufficiency-of-the-evidence claim is waived where it is not
preserved “by making a timely motion for judgment of acquittal
at the close of the evidence.” United States v. Mornan, 413 F.3d
372, 381 (3d Cir. 2005) (citing United States v. Wolfe, 245 F.3d
257, 260-61 (3d Cir. 2001), and United States v. Gaydos,

                                13
108 F.3d 505, 509 (3d Cir.1997)). But we did not clarify in
Mornan, or in Wolfe, whether the defendants in those cases had
filed post-trial Rule 29(c) motions, or simply had failed to raise
their claims before the district court. In Gaydos, however, we
expressly held that the appellant failed to preserve her claim
because her Rule 29(c) motion before the district court was
untimely. We do not think, therefore, that our statement in
Mornan, which was not in terms geared to the question whether
a Rule 29(c) motion is sufficient to preserve a claim for review,
requires us to reject our Thayer language and, in doing so, to
adopt a strained interpretation of Rule 29 that has not
commended itself to sister circuits. Accordingly, we now clarify
that a timely motion for acquittal under Rule 29(c) will preserve
a sufficiency-of-the-evidence claim for review, irrespective of
whether the defendant raised the claim at trial.

                               B.

        We turn, then, to whether Miller has raised a colorable
sufficiency-of-the-evidence claim. Miller does not challenge the
jury’s determination that he committed the offense of possessing
child pornography in violation of § 2252A(a)(5)(B). But, while
conceding that there may be substantial evidence proving his
guilt of possession, Miller contends that this evidence is not
sufficient to prove his guilt of receipt under § 2252A(a)(2). To
conclude otherwise, Miller argues, is to “extinguish the
distinction between the offense of knowing receipt and the
offense of knowing possession.” Appellant’s Brief at 28.

                               14
        The proposition underlying this argument — namely, the
proposition that a conviction for receiving child pornography
must be supported by a greater quantum of evidence than that
minimally required to prove guilt of possessing child
pornography — is correct. We appreciate that, in reviewing a
sufficiency-of-the-evidence claim, we must “examine the totality
of the evidence, both direct and circumstantial,” Gambone,
314 F.3d at 170, and doubtless there will be considerable
overlap, in most instances, between the evidence relevant to the
offenses of possession and receipt. However, receipt and
possession of child pornography are punished by separate
provisions of § 2252A, and we cannot conflate the provisions
without running afoul of “the doctrine that legislative
enactments should not be construed to render their provisions
mere surplusage.” Dunn v. Commodity Futures Trading
Commission, 519 U.S. 465, 472 (1997).

        The government’s distinct evidentiary burden with
respect to § 2252A(a)(2), vis-à-vis § 2252A(a)(5)(B), traces to
the intent-elements of the offenses. Sections 2252A(a)(2) and
2252A(a)(5)(B) punish only those who “knowingly” receive, or
“knowingly” possess, child pornography. In evaluating whether
there is sufficient evidence to support a conviction under one of
these provisions, we must review “‘whether the Government has
adduced sufficient evidence respecting each element of the
offense charged to permit jury consideration.’” United States v.
Goldblatt, 813 F.2d 619, 621 (3d Cir. 1987) (emphasis added)
(quoting United States v. Giampa, 758 F.2d 928, 934

                               15
(3d Cir.1985)). A person’s possession of a tangible object, such
as a firearm, may constitute strong circumstantial evidence that
defendant knowingly received the object. See, e.g., United
States v. Ladd, 877 F.2d 1083, 1088 (1st Cir. 1989) (noting that,
in firearm cases, “[c]onstructive receipt can be shown
circumstantially by proof of possession, either actual or
constructive”). However, as portions of the expert testimony in
this case illustrate, a person may come to knowingly possess a
computer file without ever knowingly receiving it. This could
happen, according to the parties’ experts,8 if the person’s
computer is infected with a virus or “spyware” software that


   8
     Both the government’s expert, Agent Donald J. Price, an
FBI forensic analyst, and the defendant’s expert, John R. Smith,
owner of a business that configures and supports computer
networks, acknowledged the possibility that child pornography
could be unknowingly downloaded onto a hard drive as the
result of a virus, or “spyware.” They disagreed, however, as to
whether it was likely that this possibility occurred in Miller’s
case. Agent Price testified that he was unaware of there ever
being, in the prosecutor’s words, “any reports of a child porn
dropping virus.” A. 286. Smith demonstrated how an image
could be inadvertently downloaded onto a computer. Though
Agent Price testified that he had not heard of a “virus program
capable” of accounting for Miller’s possession of the images, he
went on to explain that such a virus would have to “take the zip
diskette out of the case, put it into the computer . . . , take the zip
out, put it back in the case and delete the original images off the
computer.” A. 285-86, 382.

                                  16
surreptitiously installs advertising images.9 Thus, when a
defendant is charged with downloading a computer file, the
court must rigorously scrutinize whether there is sufficient
evidence to establish the intent-element of the crime. See, e.g.,
United States v. Kuchinski, 469 F.3d 853, 861-63 (9th Cir. 2006)
(reversing sentence based on knowingly receiving child
pornography that was stored in cache files of defendant’s
computer, where defendant lacked knowledge of or access to the
files); cf. United States v. Romm, 455 F.3d 990, 997-1001
(9th Cir. 2006) (upholding conviction for knowingly receiving
pornography stored in cache files that defendant knew he could
access).

       The evidence required to establish the intent-element of
§ 2252A(a)(2) may be greater than that required to establish the
intent-element of § 2252A(a)(5)(B) because, while a person who
“knowingly receives” child pornography will necessarily
“knowingly possess” child pornography, the obverse is not the
case. Cf. United States v. Myers, 355 F.3d 1040, 1042
(7th Cir. 2004) (upholding sentencing calculation for defendant


   9
      See also John Schwartz, Acquitted Man Says Virus Put
Pornography on Computer, N.Y. Times, August 11, 2003
(quoting, Mark Rasch, former head of U.S. Department of
Justice’s computer crimes unit, as stating, with respect to
defense in British case that virus downloaded child
pornography, “[t]he scary thing is that the defense might be
right”).

                               17
who received videos and computer-generated image files
depicting minors engaged in sexually explicit conduct, in
violation of § 2252).10 In Myers, the court observed that
“a person who seeks out only adult pornography, but without his
knowledge is sent a mix of adult and child pornography,” could
not be found guilty of knowingly receiving child pornography.
Id. “That same person, however, could be in violation of the
possession provision of § 2252(a)(4)(B) if he or she decides to
retain that material, thereby knowingly possessing it.” Id. It
follows that the quantum of evidence required to prove knowing
receipt of a downloaded file may, in some situations, be greater
than that minimally required to prove knowing possession of the
file.



   10
     The jurisprudence concerning the receipt and possession
provisions of 18 U.S.C. § 2252 and the comparable provisions
of 18 U.S.C. § 2252A often converges. Section 2252(a)(2)
prohibits the receipt of material “transported [in interstate or
foreign commerce] by any means including by computer” that
depicts “a minor engaging in sexually explicit conduct,” and
§ 2252(a)(4)(B) prohibits the possession of such material.
These statutory provisions have been characterized as
“materially identical” to § 2252A(a)(2) and § 2252A(5)(B),
which, respectively, prohibit the receipt and possession of child
pornography. United States v. Malik, 385 F.3d 758, 760
(7th Cir. 2004) (relying on Myers in holding that possession and
receipt of child pornography in violation of § 2252A are distinct
offenses).

                               18
                              C.

       Because Miller raised a colorable sufficiency-of-the-
evidence claim with respect to count one, receiving child
pornography, we must recite the evidence adduced at trial
pertaining to this count. The evidence was as follows:

      In September 2003, someone created and uploaded child
pornography onto a website that was hosted by Prime Media, the
company in Utah. Prime Media identified the unique internet
protocol (“IP”) address of the computer that was used to upload
the images. The company turned the information over to the
FBI, which concluded that the IP address was that of a computer
in Donald Miller’s home.

        The FBI searched Miller’s house in January 2004. The
agents seized one computer from the basement and one from the
living room. These computers were not state-of-the-art, and had
small hard drives relative to other computers on the market.
Though the computers had dial-up network capability, which
enables users to access the internet through an ordinary
telephone connection, they did not have the capacity to connect
at the faster speeds of broadband. The computer in the
basement, which was the focus of the government’s case, was
equipped with an external zip drive, and the agents seized
twenty-two zip disks that were also stored in the basement. The
agents also seized 55.5 grams of marijuana from the bedroom of
Miller’s wife.

                              19
       One of the zip disks contained 1200-1400 images,
according to the government’s expert witness (the defendant’s
expert counted 1373 image files). The majority of the images
depicted adult pornography, but, the government contended,
twenty of the images depicted child pornography. The twenty
images characterized by the government as child pornography
were not among the ones that had been uploaded onto the
website hosted by Prime Media.

        At trial, there was testimony that, during the search of
Miller’s home, the FBI’s supervising investigator, Agent James
A. Kyle, questioned Miller. Agent Kyle and Miller, both of
whom testified at trial, gave differing accounts of the interview.
They agreed that the tenor of the discussion was cooperative,
and that Miller volunteered the location of the marijuana. They
also agreed that Miller (a) claimed he was unaware of why the
FBI would investigate him, and (b) denied having any interest
in or experience with viewing child pornography. According to
Agent Kyle, during the interview, Miller denied having
pornography of any kind. Miller testified, however, that he
acknowledged possessing adult pornography, but not child
pornography.

        The day after the search, Miller contacted Agent Kyle
with further information. Miller told Agent Kyle that his
computer had been infected with a virus the previous year,
which might account for the uploaded images having been
traced to his computer. Miller also informed Agent Kyle that he

                               20
stored adult pornography on one of the twenty-two zip disks that
were seized, and gave Agent Kyle the password to access that
zip disk. At trial, the government presented evidence pertaining
to the twenty images on the zip disk that, the government
contended, depicted child pornography. The government’s
evidence included testimony by Agent Kyle and two FBI
forensic experts, Agents James P. McDonald and Donald J.
Price. According to this testimony, four of the twenty images
were embedded with the addresses of websites, which were
visible when viewing the images and which may have connoted
an association with child pornography. On cross-examination,
Agent Kyle testified that these address listings likely advertised
websites other than those from which the images were obtained,
and Miller’s expert witness, John R. Smith, stressed this point.
Some of the image files bore sexually suggestive file names, but
none of these file names suggested that they contained child
pornography.

        Agents McDonald and Price also testified as to when the
images were copied onto the zip disk, and whether they had
been viewed once copied onto the zip disk. The agents testified
that, for each image file, there is a record of a “date created,” a
“date written,” and a “date accessed.” The “date created”
records the date and time a file was copied onto the storage
medium, and thus would indicate when the file was copied onto
the zip disk. The “date written” records the date and time a file
was last opened and altered in some way; this date will change,
for example, if an image is cropped or resized by a user. The

                                21
“date accessed” records when a file was accessed, either by a
viewer or by some sort of program such as a scheduled virus
check. According to Agent Price’s testimony on cross-
examination, “[y]ou can’t tell,” from a file’s “date accessed,”
whether a file was opened automatically or by a user. A. 293.



       Agent Price testified that seventeen of the twenty images
presented by the government had a “date written” that was the
same as its “date created.” 11 Three of the images bore a “date
created” of October 13, 2002, and a subsequent “date written”
of May 31, 2003. Each of the images had a “date accessed” of
December 26, 2003. When asked whether he checked the “dates
accessed” for the other 1200-1400 image files on the disk, Price
replied: “No. I mean, I have that recorded, but I didn’t
necessarily note it.” A. 292.

        Miller testified at trial that he had not previously seen any
of these images and “did not knowingly and willingly put” the
images in question on the zip disk. A. 323. Miller admitted that
he stored images, including adult pornography, on zip disks, and
that he looked at adult pornography on the internet. However,
he testified that he had never seen the twenty images in question,
and that he only looked at images of adults that he understood


    11
     These file dates were October 13, 2002 (ten images);
October 29, 2002 (one image); December 17, 2002 (five
images); and December 20, 2002 (one image).

                                 22
to be legal, which he obtained from websites containing legal
disclaimers. Miller also testified that, at the time of the alleged
child pornography offenses, he was the victim of a billing fraud
wherein he was charged by a foreign company for a subscription
to a pornography website of which he had never heard. In
support of this claim, Miller submitted a credit card statement
for October 15-November 14, 2002, which indicated that the
credit card company corrected a charge from a company in Tel
Aviv called “websitebilling.com.” Miller speculated that,
because of this fraud, someone may have gotten access to his
“log ons” and credit card numbers. A. 321.

        Miller’s expert witness, John R. Smith, testified in
support of Miller’s claim that he was unaware of the images on
the zip disk. According to Smith’s testimony, the thirteen
images presented by the government that were copied onto the
zip disk on October 13, 2002, were among 586 image files
copied to the disk over a seven-hour period, at periodic intervals
suggesting that the images were copied automatically, perhaps
as the result of a virus. Smith then presented a demonstration of
how four image files may be inadvertently downloaded into a
subdirectory of a computer’s hard drive by a user who believes
that he is downloading only a single image. If the user then
saves the web page onto a zip disk or hard drive, according to
Smith, the user will save all four of the images.

       Prior to Smith’s testimony, Agent Price testified that he
was unaware of any virus that downloads child pornography. In
his rebuttal to Smith’s testimony, Agent Price testified that there
were no web pages recovered from the zip disk, so the images

                                23
found on the zip disk had been “extracted;” that is, they were
not, as Agent Price characterized it, “embedded files.” A. 423.
Agent Price also testified that it was “highly unlikely,” albeit
possible, that someone would hack into another person’s dial-up
internet connection and transmit data that would be attributed to
the IP address of that person’s computer. A. 279.

                                D.

       Having recited the evidence, we now assess whether it is
sufficient to prove each element of the charged offense.

                                 1.

        We first conclude that there is substantial, circumstantial
evidence supporting the inference that Miller downloaded child
pornography, thus satisfying the act-element of receiving child
pornography in violation of § 2252A(a)(2), the count one
charge. The jury found Miller guilty of possessing a zip disk
containing child pornography, which was among the twenty-two
zip disks stored in the basement with Miller’s computer. Miller
volunteered the password to this zip disk to Agent Kyle,
informing him that there was adult pornography on the disk. At
trial, Miller testified that he stored digital images on his zip disk,
and that he looked at adult pornography on internet websites.
Some of the images of child pornography on the disk advertised
the names of websites, suggesting that they were initially
downloaded from the internet. Cf. United States v. Henriques,
234 F.3d 263, 267 (5th Cir. 2000) (concluding that website
address embedded on image establishes link to internet for


                                 24
jurisdictional purposes). This evidence supports the inference
that Miller received the child pornography on the zip disk by
downloading it from the internet. However, because we must
review the evidence “respecting each element of the offense
charged,” Goldblatt, 813 F.2d at 621, our inquiry is not
concluded.

                                2.

       More difficult is the question whether Miller received the
images knowingly. Other courts, confronting this question, have
deemed at least four factors relevant to this inquiry: (1) whether
images were found on the defendant’s computer, see United
States v. Irving, 452 F.3d 110, 122 (2d Cir. 2006); (2) the
number of images of child pornography that were found, see id.
(finding defendant’s possession of 76 images relevant);
(3) whether the content of the images “was evident from their
file names,” United States v. Payne, 341 F.3d 393, 403 (5th Cir.
2003) (finding “number of images in [defendant’s] possession,
taken together with the suggestive titles of the photographs”
established knowing receipt); and (4) defendant’s knowledge of
and ability to access the storage area for the images, see Romm,
455 F.3d at 997-1001 (addressing defendant’s ability to access
cache files in hidden subdirectory); cf. Kuchinski, 469 F.3d at
861-63 (same). We summarize the evidence bearing on these
four factors:

       (1) The government adduced no direct, forensic evidence
that the images were downloaded onto Miller’s computer.
Agent Kyle testified that it was his “educated guess” that Miller


                               25
downloaded the images onto the zip disk via the internet,
perhaps by trading them in a chat room or by searching for them
on a website. A. 195. However, Agent Kyle went on to testify,
the government had no proof from Miller’s hard drive that
supported this hypothesis. Agent Price, on cross-examination,
acknowledged that, despite the FBI’s use of forensic software
designed to recover deleted material from hard drives, the FBI
had discovered no evidence that Miller’s computer had been
used to upload or download child pornography.12 Agent Price



  12
      Agent Price testified, however, that the images may have
been downloaded directly onto the zip disk from the internet
without first being stored on the computer’s hard drive, or may
simply have been downloaded off of the hard drive of some
other computer. Moreover, Agent Price testified, even if the
files had, at one point, been downloaded onto the hard drive of
Miller’s computer, they would not have been found by the FBI’s
forensic software if the computer’s operating system, Microsoft
Windows, had “overwritten” the files, after they were deleted,
with newer files. A. 301. According to Agent Price, Microsoft
Windows overwrites deleted files on a continual basis to avoid
“fragmenting” the hard drive with gaps of free space that are
clustered between other files, and thus unusable for storage.
        Smith, the defendant’s expert, spoke to this testimony.
Smith testified that two-thirds of the hard drive on Miller’s
basement computer was unused, and consequently that the
computer’s operating system (Microsoft Windows) was unlikely
to have overwritten any files. Agent Price does not appear to
have addressed this evaluation in his rebuttal to Smith’s
testimony.


                              26
further testified that there was no evidence that Miller ever used
search engines to locate child pornography websites, or that such
websites had ever been visited from Miller’s computer (the
FBI’s investigation did reveal, however, that two websites
containing adult pornography had been visited from the
computer). Agent Price also acknowledged that there was no
evidence that Miller ever participated in email exchanges or
online chat rooms that pertained to child pornography. Finally,
Price acknowledged that there was no evidence that Miller used
a “wiping” or “eliminator” program to clear his hard drive of
evidence that files had been downloaded. A. 296-97.

       (2) The second factor, the number of images of child
pornography found, likewise does not weigh in the
government’s favor in light of the overwhelming number of
adult images that were found. The government presented
evidence pertaining to only twenty of the 1200-1400 images
found on the zip disk, and the District Court subsequently
determined, in the process of sentencing Miller, that only eleven
of these images constituted child pornography.             Miller
contended that he was unaware of the existence of these images
and, significantly, Miller volunteered the password of the zip
disk to Agent Kyle, cautioning him that the disk contained
pornography. Miller also presented evidence that 586 of the
images were copied onto the disk at periodic intervals over a
seven-hour period, suggesting that they were not individually
viewed when they were being copied. Agent Price’s rebuttal to
this suggestion was that Miller may have first downloaded the
images onto his hard drive, or that of another computer, before
copying them onto the disk. This possibility puts sharp light,

                               27
however, on the facts that no forensic evidence of child
pornography was found on Miller’s hard drive, and that there
was no evidence adduced that another computer may have been
used to download the images.

       (3) Nor does the third factor, whether the content of the
images “was evident from their file names,” weigh in the
government’s favor. Several of the images were embedded with
the names of websites that possibly advertised child
pornography, but — according to Agent Kyle’s and Smith’s
testimony — this does not suggest that the images were obtained
from those websites. Moreover, these website names would not
be seen unless a person opened and viewed the files. While
there is strong evidence that Miller eventually came to view
some of the images of child pornography that were on the disk,13
and thus to knowingly possess the images, this evidence does
not lend much support to the inference that Miller knowingly
downloaded the images.

       (4) Turning to the fourth factor, whether the defendant
had knowledge of and an ability to access the storage space for
the images, it is clear that Miller had access to the images on the
zip disk. Indeed, Miller admitted to storing image files,
including adult pornography, on the disk. In this respect, the
facts of this case are more akin to the facts of Romm, 455 F.3d


  13
     Specifically, the “dates written” of three of the images on
the zip disk, all of which the District Court found to be child
pornography, are subsequent to the date they were copied onto
the disk (i.e. the images’ “dates created”).

                                28
at 997-1001, where the court found that the defendant’s
knowledge that he could access cache files supported the
inference that he knowingly possessed the files, than to the facts
of Kuchinski, 469 F.3d 853, 861-63, where the court rejected
this inference because the defendant was unaware of, “and
concomitantly lack[ed] access to and control over the existence
of the files.” In contrast to the facts before us, however, the
defendant in Romm had stored images of child pornography on
the hard drive of his computer, albeit in a subdirectory that was
difficult for a typical computer user to access. The Romm court
acknowledged that “[n]o doubt, images could be saved to the
cache when a defendant accidentally views the images, as
through the occurrence of a ‘pop-up,’ for instance.” 455 F.3d at
1000. However, the court concluded that this “[wa]s not the
case” in Romm’s circumstance: “By his own admission . . . ,
Romm repeatedly sought out child pornography over the
internet. When he found images he “liked,” he would “view
them, save them to his computer, look at them for about five
minutes [ ] and then delete them.” Id. By contrast, Miller has
consistently denied that he knowingly viewed or had any interest
in viewing child pornography.

       Beyond the facts relevant to these four factors, however,
the evidence presents a fifth factor that may support the jury’s
determination: the number of occasions that the images were
copied onto the zip disk. Smith testified that the images copied
onto the zip disk on October 13, 2002, were likely transferred
automatically. However, images of child pornography were also
copied onto the disk on subsequent dates. Specifically,
according to their dates created, the eleven images that the

                               29
District Court determined to actually be child pornography were
copied to the zip disk on October 13, October 29, December 17,
and December 20, 2002. A reasonable juror might have
concluded, from this evidence, that Miller copied the images on
more than one occasion.

        In light of this evidence, and considering all of the
evidence in its totality, we cannot say that “no reasonable juror
could accept the evidence as sufficient to support the conclusion
of [Miller’s] guilt beyond a reasonable doubt.” United States v.
Lacy, 446 F.3d 448, 451 (3d Cir. 2006) (quoting United States
v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987) (internal quotation
omitted)). While there certainly is evidence supporting the
conclusion that Miller did not receive the images knowingly, a
reasonable juror could look to contrary evidence and conclude
otherwise. Therefore, mindful that we may not “weigh evidence
or determine the credibility of witnesses in making [our]
determination,” Gambone, 314 F.3d at 170, we will uphold the
jury’s verdict that Miller knowingly received child pornography.

                              E.

        Miller makes two additional, time-related arguments in
support of his sufficiency-of-the-evidence claim. Miller argues
that there was not substantial evidence proving that he received
child pornography within the five-year statute-of-limitations for
§ 2252A(a)(2). Nor, Miller argues, is there substantial evidence
proving that he received child pornography “on or about” the
period between October 13, 2002 and December 20, 2002, as
charged in the superseding indictment.


                               30
        Miller waived his statute-of-limitations argument by
failing to raise it at trial. See United States v. Oliva, 46 F.3d
320, 324-25 (3d Cir. 1995). Since we cannot consider whether
his conviction was time-barred on this ground, we are able to
reverse the verdict on time-related grounds only if there is a
“material variance” between the evidence adduced at trial and
the dates charged in the superseding indictment. United States
v. Schurr, 775 F.2d 549, 553 (3d Cir. 1985). This would require
that we find both that “(1) there was at trial a variance between
the indictment and the proof and (2) the variance prejudices a
substantial right of the defendant.” Id.; see also United States
v. Akande, 200 F.3d 136, 141 (3d Cir. 1999). This rule, as Judge
Becker observed in Schurr, “protects the defendant’s right to an
indictment sufficiently inform[ing] [him] of the charges against
him so that he may prepare his defense and not be misled or
surprised at trial.” 14 775 F.2d at 553 (internal quotation
omitted). Thus, in evaluating whether such prejudice occurred,
we consider whether the defendant was disadvantaged by lack
of notice as to the nature of the government’s trial evidence.

  14
     Judge Becker also recognized two other core functions of
the rule against variance: (1) it “protects the right of each
defendant not to be tried en masse for the conglomeration of
distinct and separate offenses committed by others” and
(2) “helps to minimize the danger that the defendant may be
prosecuted a second time for the same offense.” Schurr, 775
F.2d at 553 (internal quotations omitted). While a double
jeopardy concern is raised by Miller’s conviction on separate
counts of knowing and possessing child pornography, that issue
is unrelated to Miller’s variance claim.


                               31
See id. at 559 (evaluating defendant’s opportunity to prepare
defense); see also United States v. Somers, 496 F.2d 723,
743-46 (3d Cir. 1974) (considering whether variance created
risk that defendant was “so surprised by the proof adduced that
he was unable to prepare his defense adequately”).

       The government did not present direct evidence that the
images on the disk were downloaded, and thus were received,
“on or about October 13, 2002, through December 20, 2002,”
the period alleged in the superseding indictment. Furthermore,
the government’s expert, Agent Price, suggested that the images
may have been downloaded sometime before they were copied
onto the zip disk in October and December 2002. However,
Miller does not identify, and we do not find, any prejudice to his
substantial rights that can be traced to a variance between the
date charged in the superseding indictment and the evidence
adduced at trial. Miller was aware that the images on the zip
disk formed the basis of the government’s case against him with
respect to count one. He presented expert testimony attacking
the government’s forensic evidence pertaining to these images,
and addressed the images in his own testimony. We therefore
cannot reverse Miller’s conviction on count one based on a
variance that may exist between the government’s proof at trial
and the dates charged in count one of the superseding
indictment.

                               F.

      Accordingly, we reject Miller’s sufficiency-of-the-
evidence claim.


                               32
                               IV.

        Miller next contends that the District Court’s entry of
separate convictions for count one, receiving child pornography
in violation of 18 U.S.C. § 2252A(a)(2), and count four,
possessing the same images of child pornography in violation of
18 U.S.C. § 2252A(a)(5)(B), violated the double jeopardy
clause. Because Miller failed to raise this claim before the
District Court, we review the entry of separate convictions for
plain error; that is, we must determine whether the entry of
separate convictions constitutes an “‘(1) error, (2) that is plain,
and (3) that affect[s] substantial rights. If all three conditions
are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.’” United States v. Vazquez, 271 F.3d 93, 99
(3d Cir. 2001) (quoting Johnson v. United States, 520 U.S. 461
(1997)). We address each of the factors of plain error review in
turn.

                                A.

        We first consider whether the District Court’s entry of
separate convictions for counts one and four of Miller’s
superseding indictment constituted an error. The double
jeopardy clause bars courts from “‘prescrib[ing] greater
punishment than the legislature intended” to impose for a single
offense. Rutledge v. United States, 517 U.S. 292, 297 (1996)
(quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)). There
is a rebuttable presumption that “where two statutory provisions

                                33
proscribe the same offense, a legislature does not intend to
impose two punishments for that offense.” Id. (internal
quotations omitted). Thus, if (a) two statutory provisions
“proscribe the same offense” and (b) it is not clear that the
legislature intended multiple punishments for the offense, then
the double jeopardy clause protects a defendant from being
convicted under both of the provisions.

                              1.

        Miller argues that possessing child pornography is a
lesser-included offense of receiving child pornography, and thus
that § 2252A(a)(2) (prohibiting receipt) and § 2252A(a)(5)(B)
(prohibiting possession) “proscribe the same offense.” For the
purpose of double jeopardy analysis, two offenses are the same
if one is a lesser-included offense of the other under the “same-
elements” (or Blockburger) test. This test “inquires whether
each offense contains an element not contained in the other; if
not, they are the ‘same offence’ . . . .” United States v. Dixon,
509 U.S. 688, 696 (opinion of the court) (internal quotation
omitted); see also Blockburger v. United States, 284 U.S. 299,
304 (1932) (“[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the
other does not.”).

      This court has not considered whether § 2252A(a)(5)(B)
punishes a lesser-included offense of that punished by
§ 2252A(a)(2). However, it is clear that, as a general matter,

                               34
possession of a contraband item is a lesser-included offense of
receipt of the item. See Ball v. United States, 470 U.S. 856
(1985). In Ball, a felon convicted of possessing a firearm in
violation of 18 U.S.C. § 922(h) (since revised) was also
convicted of receiving that firearm in violation of
18 U.S.C. App. § 1202(a) (since repealed). Applying the same-
elements test, the Supreme Court concluded, in Ball, that
“[w]hen received, a firearm is necessarily possessed. In other
words, Congress seems clearly to have recognized that a felon
who receives a firearm must also possess it, and thus had no
intention of subjecting that person to two convictions for the
same criminal act.” Id. at 862 (internal quotation omitted).

        Drawing on Ball, the Ninth Circuit, in United States v.
Kuchinski, 469 F.3d 853, 859 (9th Cir. 2006), in which the
defendant was indicted both under § 2252A(a)(2) and under
§ 2252A(a)(5)(B), observed, in dicta, that “[i]f, as it seems, the
counts were based on the same acts, entering judgment on both
the offenses would be improper.” See also United States v.
Morgan, 435 F.3d 660, 662-63 (6th Cir. 2005) (noting that a
defendant charged under § 2252A(a)(2), who pled guilty to
violating § 2252A(a)(5)(B), had pled to “a lesser-included
offense of the charged violation”); United States v. Mohrbacher,
182 F.3d 1041, 1048-49 (9th Cir. 1999) (consulting dictionary
definitions of “receive” after concluding that “there is no
indication that Congress intended a specific legal meaning for
the term”).15 The observation of these courts that possession of


    15
         The Oxford English Dictionary (2d ed. 1989) defines
                                                (continued...)

                               35
child pornography is a lesser-included offense of receipt of child
pornography, though offered in dicta, appears to be correct
under Ball. See also United States v. Kamen, 491 F. Supp. 2d
142 (D. Mass. 2007) (holding that possessing videotapes
depicting “a minor engaging in sexually explicit conduct,” in
violation of § 2252(a)(4)(B) is a lesser-included offense of
receiving the same videotapes in violation of § 2252(a)(2)).

        The government argues, however, that, even if
§ 2252A(a)(2) contains all the elements of § 2252A(a)(5)(B),
the provisions punish separate offenses because there is a
defense available for violations of § 2252A(a)(5)(B) that is not
available for violations of § 2252A(a)(2). 18 U.S.C. § 2252A(d)
provides an affirmative defense to a defendant who “possessed
less than three images of child pornography” and “promptly
. . . took reasonable steps to destroy each such image” or
“reported the matter to a law enforcement agency and afforded
that agency access to each such image.” The government
contends that this affirmative defense constitutes an additional
“element” of § 2252A(a)(5)(B) for double jeopardy purposes
because “it is more than theoretically possible for one to be
guilty of receipt without being guilty of the purported lesser
included offense of possession.” Appellee’s Brief at 47.




  15
     (...continued)
“receive” as “[t]o take in one’s hand, or into one’s possession
(something held out or offered by another); to take delivery of
(a thing) from another, either for oneself or for a third party.”

                               36
        That possibility — whether or not more than theoretical
— is immaterial to whether two offenses are the same under the
same-elements test. Under Blockburger, as this court has
explained, “[t]he elements of the offense are compared in the
abstract, without looking to the facts of the particular case.”
Government of Virgin Islands v. Joseph, 765 F.2d 394, 396
(3d Cir. 1985) (emphasis in original). Thus, under the same-
elements test, affirmative defenses are not among the elements
to be considered in comparing the charged offenses. Cf. Kamen,
491 F. Supp. 2d at 150-52 (holding that affirmative defenses that
do not “actually negate required elements of the crime” are not
“elements” under Blockburger). The “elements” to be compared
are rather those that must necessarily be proved to establish the
commission of a charged offense. See United States v. Chorin,
322 F.3d 274, 281 (3d Cir. 2003) (“Under the Blockburger test,
a court looks to the statutory elements of the crime charged to
determine if there is any overlap.”). We therefore conclude that
Ball controls our analysis, and that possession of child
pornography in violation of § 2252A(a)(5)(B) is a lesser-
included offense of receipt of child pornography in violation of
§ 2252A(a)(2).

                               2.

       Having concluded that §§ 2252A(a)(2) and
2252A(a)(5)(B) punish the same offense, triggering the
presumption that “a legislature did not intend to impose two
punishments for that offense,” Rutledge, 517 U.S. at 297, we
next consider whether this presumption “must . . . yield to a
plainly expressed contrary view on the part of Congress.”


                               37
Garret v. United States, 471 U.S. 773, 779 (1985). No such
view is discernible, in this case, from the language of § 2252A
or the general descriptions of the statute’s purpose contained in
the Congressional reports. See, e.g., H.R. Rep. No. 104-863, at
28-34 (Conf. Rep.) (1996); see also H.R. Rep. No. 95-811, at
5-7, as reprinted in 1978 U.S.C.C.A.N. 69, 69-71 (Conf. Rep.)
(1977) (addressing parallel provisions of § 2252A); S. Rep.
95-438, at 1-34, as reprinted in 1978 U.S.C.C.A.N. 40, 40-69
(1977) (same). Without evidence of such intent, we conclude
that these provisions, which are part of a single statute, are
“directed to similar, rather than separate, evils,” Rutledge, 517
U.S. at 304 n.14 (discussing Ball). We therefore hold that the
entry of separate convictions for the same offense under both
§ 2252A(a)(2) and § 2252A(a)(5)(B) contravenes the double
jeopardy clause, and thus constitutes an error for the purpose of
plain error review.

                               B.

       Having concluded (1) that the entry of separate
convictions for counts one and four transgressed the double
jeopardy clause, and thus constitutes an error, we turn to
whether (2) that error is plain. In making this determination, we
follow this court’s analysis in United States v. Jackson, 443 F.3d
293 (3d Cir. 2006). In Jackson, we held, as a matter of first
impression for this circuit, that possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), is
a lesser-included offense of possession with intent to distribute
cocaine base within 1,000 feet of a school, in violation of
21 U.S.C. § 860(a). Reviewing the district court’s entry of


                               38
separate convictions for these offenses under the plain error
rubric, we determined that, notwithstanding that the double
jeopardy question had not previously been addressed by this
court, the district court’s error was plain. See 443 F.3d at 301.

       We find that the error in this case is likewise plain. As
addressed above, we hold that possessing child pornography is
a lesser-included offense of receiving child pornography, and
thus that §§ 2252A(a)(2) and 2252A(a)(5)(B) punish the same
offense. Though we reach this conclusion as a matter of first
impression, we do so on the basis of the Supreme Court’s
holding in Ball, which is well entrenched in our law and clear in
its implications with respect to the double jeopardy question in
this case. We therefore find that the error in entering separate
convictions for counts one and four of Miller’s superseding
indictment is, indeed, plain.

                              C.

        Having determined that (1) the entry of convictions under
both statutes was error and (2) the error is plain, we now
consider (3) whether that plain error “affected substantial
rights.” In Jackson, we held that the district court’s entry of
separate convictions for the same offense affected the
defendant’s substantial rights because “[t]he Fifth Amendment
right to be free from duplicative prosecutions and punishment is
a hallmark of American jurisprudence.” 443 F.3d at 301. The
Jackson court’s observation is no less true with respect to the
double jeopardy error in this case, and we therefore hold that



                               39
Miller’s substantial rights have been affected by the entry of
separate convictions for counts one and four.

                                D.

       Having considered three factors of plain error review, we
now turn to the fourth factor — namely, whether the District
Court’s error “seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” In Jackson, the court
determined that, although the district court imposed concurrent
sentences for the separate convictions, its entry of the
convictions seriously affected the fairness of the sentencing
proceeding because the defendant received two special
assessments of $100 instead of one. See id. These monetary
penalties are not the sole costs resulting from the entry of
separate convictions, however. In Rutledge, the Supreme Court
observed that, in considering whether the entry of separate
convictions imposes multiple punishments, “‘the potential
adverse collateral consequences’” that inhere in each separate
conviction “‘may not be ignored.’” 517 U.S. at 302 (quoting
Ball, 470 U.S. at 865).

        The entry of separate convictions for violation of
§§ 2252A(a)(2) and § 2252A(a)(5)(B) saddles the defendant
with separate $100 special assessments and threatens him with
“the potential adverse collateral consequences” of two
convictions on child pornography charges. We therefore hold
that the entry of separate convictions for counts one and four of
Miller’s superseding indictment seriously affected the fairness
of the District Court’s proceedings. Accordingly, we conclude


                                40
that, under the plain error standard, we may notice this double
jeopardy error, and we turn to addressing the appropriate
remedy.

                              E.

       Where we conclude that a defendant was erroneously
convicted for the same offense under two separate counts, but
find the evidence sufficient to support either conviction, “the
only remedy consistent with the congressional intent is for the
District Court, where the sentencing responsibility resides, to
exercise its discretion to vacate one of the underlying
convictions.” Ball, 470 U.S. at 864. Accordingly, we will
remand this case to the District Court for further appropriate
proceedings.

                               V.

      Miller also appeals the District Court’s determination that
he committed perjury in testifying to the nature of his adult
pornography collection, which formed the basis of the District
Court’s addition of a two-level enhancement pursuant to
U.S.S.G. § 3C1.1 (2003),16 to his recommended Guidelines
sentencing level. The District Court applied the enhancement


 16
    Miller’s presentence investigation report also recommended
the obstruction of justice enhancement on the basis that Miller
gave perjured testimony regarding the marijuana he was found
to have possessed.         The District Court rejected this
recommendation.

                               41
based on the following colloquy, which took place during the
government’s cross-examination of Miller at trial:

        Q. You do collect pornography, correct?

        A. I had a small collection of adult pornography,
        yes. It was primarily Playboy images.

        Q. What’s that?

        A. Primarily Playboy centerfolds.

        Q. Primarily Playboy centerfolds?

        A. Yes.

        Q. Did you have sadomasochistic pictures?

        A. Not that I’m aware of, no.

A. 311. The government then sought to introduce into evidence
five images that were found on the zip disk containing child
pornography. The images, which were of adults, were said by
the government to be “sadomasochistic.” The District Court
excluded these images as unduly prejudicial under Fed. R.
Evid. 403, and the government asked no further questions of
Miller on this subject.17 At a post-trial evidentiary hearing to


  17
       During Miller’s cross-examination, the government made
                                                  (continued...)

                               42
address Miller’s objections to the PSR, the government
introduced the five images, and Agent Kyle provided detailed
descriptions of them. The District Court concluded from this
evidence that the images “could fairly be described as
sadomasochistic pornography,” and that Miller’s testimony that
he was not aware of having any sadomasochistic images
constituted perjury. A. 21.

                                A.

          Section 3C1.1 of the 2003 version of the Guidelines
provides for an enhancement if a defendant “willfully
. . . attempted to obstruct or impede, the administration of justice
during the course of the . . . prosecution” through conduct that


  17
     (...continued)
two requests to introduce the images. When its first request was
denied, the government stated an intention to reintroduce the
images in its rebuttal, and the District Court said it would
consider the request at that time. When the government made
its second request during Miller’s cross-examination, shortly
following its first request, Miller’s counsel said that he would
not object to the government’s introduction of “non-prejudicial
adult pornography” to impeach Miller’s testimony, but that he
objected to the admission of images of an extremely prejudicial
nature that “are not indicative of the majority of the images” on
the zip disk. A. 317. Despite this concession, the government
did not seek to introduce any other images to impeach Miller’s
testimony. It did, however, elicit testimony from Smith, Miller’s
expert, that he found images on the disk that he considered to
depict sadomasochistic pornography.

                                43
is “related to (i) the defendant's offense of conviction and any
relevant conduct; or (ii) a closely related offense . . . .” U.S.S.G.
§ 3C1.1 (2003).18 The commentary to § 3C1.1 instructs that it
covers perjury. See U.S.S.G. § 3C1.1 cmt. n.4 (2003). Writing
for a unanimous Court in United States v. Dunnigan, 507 U.S.
89 (1993), Justice Kennedy stated that: “In determining what
constitutes perjury, we rely upon the definition that has gained
general acceptance and common understanding under the federal
criminal perjury statute, 18 U.S.C. § 1621.” 507 U.S. at 94.
Accordingly, to trigger application of § 3C1.1 on perjury
grounds, a defendant must give “false testimony concerning a
material matter with the willful intent to provide false testimony
. . . .” Id.


  18
    As noted above, the District Court applied the 2003 version
of Guidelines, which was in effect at the time of Miller’s
offense. The 2003 version of § 3C1.1 states:

       If (A) the defendant willfully obstructed or
       impeded, or attempted to obstruct or impede, the
       administration of justice during the course of the
       investigation, prosecution, or sentencing of the
       instant offense of conviction, and (B) the
       obstructive conduct related to (i) the defendant’s
       offense of conviction and any relevant conduct; or
       (ii) a closely related offense, increase the offense
       level by 2 levels.

U.S.S.G. § 3C1.1 (2003). The provision was revised in 2006 to
punish obstructing the administration of justice “with respect
to,” rather than “during the course of” the prosecution.

                                 44
       Miller argues that his testimony as to his adult
pornography collection was neither false nor material, and thus
did not warrant a sentencing enhancement. We review the
factual findings underlying the District Court’s perjury
determination for clear error, while exercising plenary review
over the District Court’s conclusions of law. See Grier, 475
F.3d at 561. In undertaking the review, we are guided by the
precept, stated in the commentary to § 3C1.1, that the section “is
not intended to punish a defendant for the exercise of
constitutional right,” and accordingly we are “cognizant that
inaccurate testimony or statements sometimes may result from
confusion, mistake, or faulty memory and, thus, not all
inaccurate testimony or statements necessarily reflect a willful
attempt to obstruct justice.” U.S.S.G. § 3C1.1 cmt. n.2 (2003).

        Addressing this obligation, Dunnigan instructs that “if a
defendant objects to a sentence enhancement resulting from her
trial testimony, a district court must review the evidence and
make independent findings necessary to establish a willful
impediment or obstruction of justice, or an attempt to do the
same, under the perjury definition we have set out.” 507 U.S. at
95. In doing so, “it is preferable for a district court to address
each element of the alleged perjury in a separate and clear
finding.” Id.; cf. United States v. Boggi, 74 F.3d 470, 479
(3d Cir. 2006) (upholding perjury determination that necessarily
encompassed “all of the elements of perjury—falsity,
materiality, and willfulness”).

      Consistent with Dunnigan’s instruction, the District
Court made express findings as to each element of perjury. The

                               45
District Court concluded that Miller possessed “images that
could fairly be described as sadomasochistic pornography,” and
that Miller testified falsely in claiming that he was not aware of
possessing “sadomasochistic pictures.” The District Court
further found that this testimony concerned a “material matter.”
A. 32. We separately address each finding.

                               B.

       Miller does not directly challenge the District Court’s
factual determination that the zip disk containing child
pornography also contained five images depicting adults “that
could fairly be described as sadomasochistic pornography.” We
cannot conclude, based on the testimony in the record as to the
content of the images, that this finding is clearly erroneous.
However, Miller’s testimony will support a sentencing
enhancement for perjury only if he also gave willfully false
testimony as to his understanding of the images. Thus,
notwithstanding whether the images “could fairly be described
as sadomasochistic pornography,” the court must consider
(a) whether Miller was both aware that he possessed the
assertedly “sadomasochistic” images, and (b) whether Miller
himself considered those images to be “sadomasochistic.”

                               C.

       Miller argues that the District Court had no valid basis
for concluding that he gave willfully false testimony by saying
— in response to the question “[d]id you have sadomasochistic
pictures?” — “[n]ot that I’m aware of, no.” The District Court


                               46
found this testimony to be willfully false for the following
reason: “The jury found Miller guilty of knowingly possessing
child pornography.     Since the zip disk containing the
sadomasochistic pornography was knowingly in his possession,
we are of the view that he knowingly possessed the images
themselves.” A. 31 (emphasis in original).

       This recital is not, of itself, sufficient to support a finding
that Miller gave willfully false testimony. “[I]n order to warrant
the two point enhancement for obstruction of justice, the perjury
of the defendant must . . . be clearly established, and supported
by evidence other than the jury’s having disbelieved him . . . .”
United States v. McLaughlin, 126 F.3d 130, 140 (3d Cir. 1997)
(emphasis in original) (quoting United States v. Colletti,
984 F.2d 1339, 1348 (3d Cir. 1992), abrogated on other
grounds by United States v. Fiorelli, 133 F.3d 218, 222-23
(3d Cir. 1998)).19 Moreover, the jury’s determination that Miller


  19
       The above-quoted McLaughlin-sentence reads, in full:

         [I]n order to warrant the two point enhancement
         for obstruction of justice, the perjury of the
         defendant must not only be clearly established,
         and supported by evidence other than the jury’s
         having disbelieved him, but also must be
         sufficiently far-reaching as to impose some
         incremental burdens upon the government, either
         in investigation or proof, which would not have
         been necessary but for the perjury.

                                                       (continued...)

                                 47
knowingly possessed child pornography does not, in light of the
evidence, compel the inference that Miller knowingly possessed
each of the 1200-1400 images on the zip disk, as the
government adduced no forensic testimony regarding images on
the disk that depicted adults. We are thus bound to reject the
District Court’s inference, and consider whether the record can
nevertheless support the District Court’s “view that [Miller]
knowingly possessed” sadomasochistic pictures.

                               1.

        The District Court’s finding that Miller gave willfully
false testimony was predicated on Miller's answer to a single
question at trial:

       Q. Did you have sadomasochistic pictures?

       A. Not that I’m aware of, no.

In evaluating whether this testimony can sustain a finding of
perjury, we must consider whether, in the context of the




  19
    (...continued)
McLaughlin, 126 F.3d at 140 (emphasis and alteration in
original) (quoting Colletti, 984 F.2d at 1348). In Fiorelli, the
court affirmed that a jury’s verdict cannot itself support a
finding of perjury. However, it rejected, as dictum, the
proposition that a false and material statement must impose an
incremental burden on the government. See 133 F.3d at 222-23.

                              48
defendant’s testimony, the government’s question is open to
multiple interpretations.

       “Precise questioning is imperative as a predicate for the
offense of perjury.” Bronston v. United States, 409 U.S. 352,
362 (1973) (holding that a defendant’s true, if misleading,
testimony cannot support a conviction under the federal perjury
statute). The Bronston Court stressed that it is incumbent on the
government to examine a witness with the precision and
thoroughness necessary to establish the elements of perjury:

       [W]e perceive no reason why Congress would
       intend the drastic sanction of a perjury
       prosecution to cure a testimonial mishap that
       could readily have been reached with a single
       additional question by counsel alert—as every
       examiner ought to be—to the incongruity of
       petitioner's unresponsive answer. Under the
       pressures and tensions of interrogation, it is not
       uncommon for the most earnest witnesses to give
       answers that are not entirely responsive.
       Sometimes the witness does not understand the
       question, or may in an excess of caution or
       apprehension read too much or too little into it.
       . . . It is the responsibility of the lawyer to probe;
       testimonial interrogation, and cross-examination
       in particular, is a probing, prying, pressing form
       of inquiry. If a witness evades, it is the lawyer’s
       responsibility to recognize the evasion and to
       bring the witness back to the mark, to flush out

                                49
       the whole truth with the tools of adversary
       examination.

409 U.S. at 358-59. In United States v. Serafini, 167 F.3d 812
(3d Cir. 1999), we heeded this guidance and held that a perjury
conviction under 18 U.S.C. § 1623 cannot be predicated on a
response to a “fundamentally ambiguous” question. 167 F.3d at
820; see id. at 824 (“[L]ack of specificity [i]s a form of
imprecision whose ‘consequences must be laid at the table of the
questioner, not the questioned.’” (ellipses omitted) (quoting
United States v. Sainz, 772 F.2d 559, 563 (9th Cir. 1985))).

        While our opinion in Serafini speaks to whether a
question is so “fundamentally ambiguous” that it cannot be
submitted to the jury as the basis for a finding of perjury, it
compels us to consider whether, in the context of § 3C1.1,
a question is sufficiently precise to support the factual findings
made by the District Court. As the Tenth Circuit has stated:
“The purpose of the rule of fundamental ambiguity is three-fold,
namely, to (1) preclude convictions grounded on surmise or
conjecture; (2) prevent witnesses from unfairly bearing the risks
of inadequate examination; and (3) encourage witnesses to
testify (or at least not discourage them from doing so).” United
States v. Farmer, 137 F.3d 1265, 1269 (10th Cir. 1998). This
threefold purpose echoes the precepts that guide our application
of a sentencing enhancement for perjury: namely, that § 3C1.1
“is not intended to punish a defendant for the exercise of
constitutional right,” and that we must be “cognizant that
inaccurate testimony or statements sometimes may result from
confusion, mistake, or faulty memory and, thus, not all

                               50
inaccurate testimony or statements necessarily reflect a willful
attempt to obstruct justice.” U.S.S.G. § 3C1.1 cmt. n.2 (2003).
Just as these concerns require district courts, in addressing a
defendant’s objections to a sentencing enhancement for perjury,
to “make independent findings necessary to establish a willful
impediment or obstruction of justice, or an attempt to do the
same,” Dunnigan, 507 U.S. at 95, they oblige us to consider the
clarity of the questioning that underlies the District Court’s
findings.

                               2.

       In two respects, the question put to Miller, the answer to
which the District Court found willfully false, lacked the
precision adequate to support the District Court’s finding. First,
the government did not lay a suitable foundation for the
question: “Did you have sadomasochistic pictures?” It is
apparent that, in asking this question of Miller during cross-
examination, the government sought to elicit testimony
concerning five specific image files, depicting adults, that were
found on a zip disk containing 1200-1400 image files. It does
not appear that the government provided Miller with notice that
it was these five images to which it was referring.           The
government proffered no testimony describing the image files,
and was precluded from admitting the images themselves into
evidence. Furthermore, the government made no effort to
refresh Miller’s recollection by showing him copies of the
images (without introducing them into evidence). Without such
a foundation, there is no basis for concluding that Miller was



                               51
aware of which assertedly “sadomasochistic pictures” the
prosecutor might have had in mind.

       Second, even if Miller had been aware that he possessed
the five image files to which the government was alluding, the
government’s questioning did not establish that he gave a
willfully false answer by denying that he possessed
“sadomasochistic pictures.”          The meaning of the term
“sadomasochistic” is both contested and context-dependent.
See, e.g., United States v. Turchen, 187 F.3d 735, 739 (7th Cir.
1999) (endorsing district court approach of surveying the
“ordinary and more clinically precise” meanings of “sadistic and
masochistic conduct” before finding that material fit this
description). The government made no attempt to probe
Miller’s understanding of the term. This omission is particularly
significant in view of the government’s failure to present Miller
with copies of the five images that it subsequently contended to
be “sadomasochistic.” While we defer to the District Court’s
factual determination at the sentencing hearing that the images
“could fairly be described as sadomasochistic pornography,” this
finding is not by itself controlling with respect to whether Miller
gave willfully false testimony. The salient considerations, with
respect to this inquiry, are whether, in undertaking to give a
truthful answer to the question posed at trial, Miller (1) would
necessarily have called to mind those five images, stored on a
zip disk containing no fewer than 1200 images, that would have
particularly engaged the government’s attention as
“sadomasochistic,” and (2) would necessarily have
acknowledged not merely that the images “could,” as the
District Court was later to say, “fairly be described as

                                52
sadomasochistic,” but that he, Miller, would, if being truthful,
acknowledge that the images were indeed “sadomasochistic.” 20

        Because the government did not clarify what Miller
understood the term “sadomasochistic” to mean, we have no
basis for concluding whether Miller thought that he possessed
“pictures” that would fit that description. Accordingly, we
conclude that the government failed to engage in the “[p]recise
questioning that Bronston holds to be “imperative as a predicate
for the offense of perjury.” 409 U.S. at 362. Miller’s response
to the government’s questioning cannot, therefore, support the
District Court’s determination that Miller gave willfully false
testimony as to whether he was aware that he possessed
“sadomasochistic pictures.”

                               D.

        Miller also argues that the District Court erred in finding
that his allegedly false testimony concerned a “material matter.”



  20
     The government argues, without proffering a definition for
the term “sadomasochistic,” that the brutality of the images in
question is so manifest that any truthful viewer would find the
term to be descriptively correct. However, in concluding that
the images “could fairly be described as sadomasochistic,” the
District Court did not find that any truthful viewer would
necessarily describe them as such, an undertaking that would
warrant consideration of popular understandings of the term
“sadomasochism.” See, e.g., Turchen, 187 F.3d at 139. We may
not augment the District Court’s findings.

                                53
We exercise plenary review over this determination, as it
involves a mixed question of law and fact. See United States v.
Gaudin, 515 U.S. 506, 511-22 (1995);21 United States v. Kiam,
432 F.3d 524, 527 (3d Cir. 2006) (“Our review of legal rulings
and mixed questions of law and fact is plenary.”). The
commentary to § 3C1.1 provides that a “material” statement, “as
used in th[e] section,” is a statement that, “if believed, would
tend to influence or affect the issue under determination.” This
guidance meshes with the restriction that § 3C1.1 may be
applied only to “obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or
(ii) a closely related offense.” U.S.S.G. § 3C1.1 (2003).




   21
      Just over thirty years ago, in United States v. Crocker,
568 F.2d 1049, 1056 (3d Cir. 1977), we ruled that “both under
the perjury statute, 18 U.S.C. § 1621, and under the false
declarations statute, 18 U.S.C. § 1623, materiality is an
essential element of the offense and a question of law reserved
for decision by the court.” But Crocker has been overtaken by
Gaudin, in which the Supreme Court held that, because
materiality is an essential element of perjury, it must be decided
by the trier of fact. See 515 U.S. at 511-22. The elements of
perjury for the purpose of § 3C1.1 are the same as those under
the perjury statute, § 1621, see Dunnigan, 507 U.S. at 94, and
we consequently treat materiality as a mixed question of law and
fact, which we continue to review de novo.


                               54
Accordingly, in harmony with many of our sister circuits,22 we
apply the commentary’s definition of “material” in determining
whether the materiality element of perjury has been established
for the purpose of a sentencing enhancement.

       The five assertedly “sadomasochistic” images that
underlie the District Court’s perjury determination feature
adults. The District Court nevertheless concluded that the
testimony was material to Miller’s offense for the following
reason:

          There is a significant distinction to be drawn
          between a collection of Playboy images and a
          collection of pornography which includes images
          of women being raped and tortured. The images
          in a collection obviously reflect the collector’s
          preferences and interests. A collection entirely


     22
         See United States v. Thundershield, 474 F.3d 503,
508 (8th Cir. 2007), United States v. Salazar-Samaniega,
361 F.3d 1271, 1275 (10th Cir. 2004); United States v. Quinn,
359 F.3d 666, 681 (4th Cir. 2004); United States v. Owens,
308 F.3d 791, 795 (7th Cir. 2002); United States v. Singh,
291 F.3d 756, 762-63 (11th Cir. 2002); United States v. Ahmad,
202 F.3d 588, 593 (2d Cir. 2000); United States v. Haas,
171 F.3d 259, 268 (5th Cir. 1999); United States v. Jones,
159 F.3d 969, 980-81 (6th Cir. 1999); Cf. United States v. Fox,
393 F.3d 52, 61 n.9 (1st Cir. 2004) (finding testimony material
where it tended to undermine the credibility of law enforcement
officer testifying against defendant), vacated on other grounds,
545 U.S. 1125 (2005).

                                 55
       comprised of Playboy centerfolds may be viewed
       as more acceptable or “mainstream.” A collection
       which includes sadomasochistic pornography may
       well reflect interests in more deviant sexual
       practices, or at least in other images depicting
       such conduct.

A. 31. Therefore, the District Court concluded, Miller’s
testimony “constitutes false testimony on a material matter. His
statement, if believed by the jury, would have influenced or
affected their resolution of the offense charged in count 1 of the
indictment . . . .” A. 32.

        Two appellate courts have confronted a similar question,
in the context of determining the propriety of admitted evidence,
and concluded that a defendant’s interest in unusual adult
pornography is irrelevant to whether he is guilty of a child
pornography count. In United States v. Harvey, 991 F.2d 981
(2d Cir. 1993), the court held that, because they were irrelevant,
videos depicting adults “performing gross acts involving human
waste, and people engaging in bestiality and sadomasochism,”
991 F.2d at 996, were inadmissible as evidence that a defendant
received child pornography:

       The . . . X-rated material, which did not involve
       either child pornography or simulated child
       pornography, did not bear on the disputed trial
       issues, and thus was not relevant.            See
       Fed. R. Evid. 401 and 402 [(providing that
       “evidence which is not relevant is not

                               56
       admissible”)]. . . . The[] questions and the
       answers [regarding the videos] concerned material
       for which Harvey was not being prosecuted and
       that did not bear on the disputed trial issues. We
       have little difficulty in concluding that the likely
       effect of this evidence was to create disgust and
       antagonism toward Harvey, and resulted in
       overwhelming prejudice against him.

Id.

     The Fifth Circuit drew upon this holding to conclude, in
Ward v. Dretke, 420 F.3d 479 (5th Cir. 2005),23 that images


  23
      In Ward, a habeas petitioner, when he was a defendant in
Texas state court, pled guilty to charges including possession of
child pornography, and elected to have a jury determine his
sentence. The jury sentenced the defendant-petitioner to
66 years’ imprisonment. The district court found that the
petitioner received ineffective assistance of counsel at the
punishment trial. The Fifth Circuit reviewed this determination
under AEDPA’s constraint that a state court determination may
be reversed only if it “involved an unreasonable application of[]
clearly established Federal law . . . .” 28 U.S.C. § 2254(d)(1).
Bound by this constraint, the Fifth Circuit concluded that the
state court did not unreasonably apply the second prong of the
“performance and prejudice” test, as set forth in Strickland v.
Washington, 466 U.S. 688 (1984), in concluding that the
petitioner was not prejudiced by the failures of his counsel. The
Fifth Circuit did find, however, that, with respect to the first
                                                    (continued...)

                               57
depicting adults engaging in bestiality, which were stored on a
defendant’s computer along with child pornography, were
irrelevant to a “sentencing jury’s” assessment of a defendant’s
culpability for possessing child pornography:

       We can identify no objectively reasonable basis in
       this case for permitting the sentencing jury to
       view the images of adult bestiality. The images
       did not form part of the factual basis for the
       charges to which Ward plead guilty, and had no
       relevance to the jury's sentencing determination
       apart from demonstrating the depths of depravity
       to which Ward had sunk. Even if the evidence
       were relevant in some tangential way to the
       determination of Ward’s sentence, we believe it
       highly probable that considerations of unfair
       prejudice would have sufficed to keep this
       evidence from the jury.

Id. at 494-95 (citing Harvey, 991 F.2d at 995-96).

       We agree with the Harvey and Ward analyses, and find
them relevant to whether testimony regarding a defendant’s
interest in adult pornography is “related to [] the defendant’s


  23
     (...continued)
prong of Strickland, the performance of petitioner’s counsel was
constitutionally deficient. This finding was based, in part, on
counsel’s failure to object to the admission, at the sentencing
trial, of images depicting adults engaging in bestiality.

                              58
offense” of child pornography “and any relevant conduct.”
U.S.S.G. § 3C1.1 (2003). As the District Court did not point to
any empirical or theoretical grounds for its conclusion, and we
cannot identify such grounds, we follow the reasoning of the
Harvey and Ward courts and reject the proposition that a
defendant’s taste for an unusual genre of adult pornography is
material to his interest in child pornography. We are therefore
of the view that the District Court erred in finding that Miller
gave false testimony on a material matter.

                               E.

       In summary, we hold that the record does not support the
District Court’s determination that (a) Miller’s testimony, with
respect to the assertedly “sadomasochistic pictures,” was
willfully false, or (b) the testimony was material. Accordingly,
we conclude that it was error to find that Miller committed
perjury and, on that ground, to add to the Guideline calculation
of Miller’s sentence an enhancement for obstruction of justice.



                               VI.

       For the foregoing reasons, we will VACATE the District
Court’s Judgment and Commitment Order, and will REMAND
the case for further proceedings in accordance with this Opinion.

____________




                               59
RENDELL, Circuit Judge, Concurring in Part and Dissenting
in Part.

        While the majority opinion goes to great lengths to point
out the distinction between knowing receipt and knowing
possession of child pornography, and that proof of the latter is
not enough to satisfy the former, I suggest that the only proof
adduced by the Government here is of the latter. There is simply
no non-speculative evidence that would tend to show, let alone
prove beyond a reasonable doubt, that Miller received the eleven
images — out of the 1200-1400 total on the zip disk — knowing
that they were child pornography. Perhaps there is enough from
which the jury could infer his knowing possession — because
the images were on a password-protected zip disk that he
acknowledged was his. However, without any evidence
whatsoever that would point to how he accessed or obtained the
child pornography images, let alone any evidence tending to
show that he was or should have been aware of what they were
at the time he took possession of them, I suggest that a jury
could not properly find knowing receipt.

      Knowing receipt is a much more serious crime than
knowing possession. Generally, it carries with it a five-year
minimum sentence and a twenty-year maximum, while knowing
possession has no statutory minimum and the maximum
sentence is ten years. See 18 U.S.C. § 2252A(b). Inferring
“knowing receipt” from (a) the presence of the images on the



                               60
zip disk, and (b) the differing “copied” dates requires too great
a leap. When combined with the burden of proof beyond a
reasonable doubt, it strains credulity.

        There were at least 1200 images on the zip disk and the
Government only characterized twenty — less than 2% — of
them as child pornography.1 Thirteen of the twenty images were
created on October 13, 2002, one on October 29, 2002, five on
December 17, 2002, and one on December 20, 2002. It should
be noted that the thirteen copied on October 13 were among
586 image files copied to the zip disk over a seven-hour period,
at intervals suggesting they were copied automatically. (The
record before us does not indicate how many total images were
copied on the three dates other than October 13.) Further, the
District Court determined that only eleven of the twenty images
put forth by the Government — less than 1% of all of the images
on the zip disk — constituted child pornography.

       Given the amazing capabilities of technology to trace and
find, backtrack and connect, so as to prove the source and path
of computer-generated and -transmitted data, the sheer inability
of the Government to posit a non-speculative explanation as to
how these images came to be on the zip disk, let alone prove
they were “knowingly received” by Miller is, to me, striking.



    1
      The Government’s expert did not even know the total
number of images on the zip disk, testifying that there were
between 1200 and 1400. The defendant’s expert testified that
there were 1373.

                               61
      I would REVERSE the jury verdict as to knowing receipt
and REMAND for re-sentencing on the possession charge.2




  2
    I do agree with the majority that the perjury enhancement
was improperly applied and that the knowing possession of child
pornography is a lesser-included offense of the knowing receipt
of child pornography.

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