Submitted December 18, 2013
Appeal from United States District Court for the District of North Dakota - Fargo.
For United States of America, Plaintiff - Appellee: Jennifer Klemetsrud Puhl, U.S. Attorney's Office, Fargo, ND.
Christopher Emly, Defendant - Appellant, Pro se, Sisseton, SD.
For Christopher Emly, Defendant - Appellant: Christopher J. Lancaster, Federal Public Defender's Office, Fargo, ND.
Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
WOLLMAN, Circuit Judge.
Christopher Emly was convicted of one count of receipt of materials involving the sexual exploitation of children, in violation of 18 U.S.C. § 2252(a)(2), and three counts of possession of materials involving the sexual exploitation of children, in violation of 18 U.S.C. § 2252(a)(4)(B). On appeal, Emly alleges three errors: (1) his multiple
convictions for possession violate the Double Jeopardy Clause; (2) the jury's guilty verdict on both the greater receipt offense and its lesser included possession offense violates the Double Jeopardy Clause; and (3) the jury instructions constructively amended the indictment. We affirm in part and remand with directions.
In October 2010, Special Agent James Shaw of the North Dakota Bureau of Criminal Investigation discovered several files containing child pornography that he traced to a computer located in Emly's mother's home. Agent Shaw obtained a search warrant for the residence. During the search, Agent Shaw seized a laptop computer that contained the files he had first discovered. He also found and seized a Secure Digital card (SD card), a compact disc (CD), and a desktop computer tower. All of these items were seized from a room identified as Emly's bedroom.
Forensic analysis of the laptop revealed that LimeWire, a file-sharing software program that allows users to receive and distribute files over the Internet, had been installed on the laptop, but had been subsequently uninstalled prior to the search. The analysis also revealed approximately 629 image files containing child pornography on the laptop. The SD card contained copies of 481 of the child pornography files found on Emly's laptop. Additionally, the CD and the desktop computer each contained the same set of six to eight illegal images. These images were not part of the 629 image files found on the laptop, but the evidence suggests that Emly burned the six to eight images onto the CD from the laptop and then transferred the images onto the desktop computer tower. After Emly successfully burned the six to eight images onto the CD, these images were automatically deleted from the laptop.
A federal grand jury returned an indictment charging Emly with the counts set forth above. Specifically, the indictment charged Emly with one receipt count for using his laptop to receive child pornography files via LimeWire and one possession count each for the SD card, the CD, and the desktop computer tower. All three possession counts charged Emly with possession of child pornography on the same day--the day the devices were seized--" on or about November 9, 2010." The district court denied Emly's pretrial motion to merge the three possession counts.
Emly proposed a jury instruction for the charged receipt offense, Instruction No. 9, based on the Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit. The government proposed a similar jury instruction but included language regarding the production of the child pornography that was absent from Emly's proposed instruction. The district court substantially adopted Emly's proposed instruction in its final jury instructions.
At trial, the district court instructed the jury on both the charged receipt offense and its lesser included offense of possession. The instruction on the lesser included offense was a classic " stair-step" instruction, ordering the jury to consider the lesser included offense only if it found the defendant not guilty or if it could not reach a verdict on the receipt offense. The Special Verdict Form also instructed the jury to find Emly either not guilty or guilty of the receipt offense and further instructed the jury to deliberate on the lesser included possession offense only if it found Emly not guilty of the receipt offense. Despite the instructions, the jury returned a guilty verdict on both the receipt offense and its lesser included possession offense. The district court did not, however, enter judgment of conviction on the lesser included
possession offense. The jury also returned a guilty verdict on each of the three possession counts. The district court polled the jury to ensure that the verdict was unanimous and, in response, each juror confirmed that the verdict read in court was his or ...