Submitted: January 12, 2018
from United States District Court for the Southern District
of Iowa - Council Bluffs
SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
a jury trial, Kevin Timothy Morrissey was convicted of one
count of possession of child pornography under 18 U.S.C.
§ 2252(a)(4)(B), (b)(2) and one count of receipt of
child pornography under 18 U.S.C. § 2252(a)(2), (b)(1).
He appeals both convictions. We affirm the receipt
conviction, but remand to the district court with
instructions to vacate the lesser-included possession
conviction because the district court failed to instruct the
jury that it could not convict Morrissey for both receipt and
possession based on the same facts.
2013, Morrissey was sentenced in Washington state court to 34
months imprisonment and 36 months of supervised release for
possession of child pornography. After he was released in May
2014, he moved to Iowa in September 2014, and his supervision
was transferred there. Under his terms of supervision,
Morrissey was prohibited from accessing the Internet and
possessing devices that could access the Internet. On January
7, 2016, probation officers conducted a home visit at
Morrissey's residence in Oakland, Iowa, where they
discovered an active wireless hotspot and a Dell laptop
computer. Examination of the Dell laptop revealed 50 images
and one video (collectively "files") that Digital
Forensics Examiner Anthony Kava believed to be child
pornography, as well as a web browser history indicative of
searches for child pornography. Officers obtained a search
warrant for Morrissey's residence and seized hard drives
from an outbuilding on the property. One was a Seagate hard
drive containing 10 images of suspected child pornography.
jury in the Southern District of Iowa indicted Morrissey on
one count of possession of child pornography and one count of
receipt of child pornography. At Morrissey's jury trial,
Kava testified as to the files recovered from the Dell laptop
and Seagate hard drive, and the government introduced into
evidence-without objection-a spreadsheet Kava created listing
the files he believed to be child pornography. The
spreadsheet also indicated which files had been previously
identified as child pornography by the National Center for
Missing and Exploited Children
("NCMEC"). In addition, the government
introduced-again, without objection-12 images and one video
of suspected child pornography from the Dell laptop and 10
images from the Seagate hard drive. Six of the hard drive
images had been previously identified by NCMEC as child
pornography. Two FBI agents also testified, based on their
own investigations, that two of those six images were child
jury was instructed that in order to convict Morrissey for
receipt of child pornography, it must first find "that
from an unknown date, but at least as early as May of 2015,
continuing up to and including January of 2016, [Morrissey]
knowingly received one or more visual depictions of a minor
engaged in sexually explicit conduct." During
deliberations, the jury asked the court, "How far back
can unknown date be, i.e., 1990?" In the presence of
both counsel and Morrissey, the district court proposed this
response: "It can begin at any time, but you must
unanimously agree as to at least one receipt after March 29,
2011." This, the court reasoned, accurately reflected
the five-year statute of limitations. Morrissey's counsel
told the court he had "no objection to that."
was convicted of one count of possession of child pornography
and one count of receipt of child pornography. As to the
possession conviction, the jury found the government had
failed to prove that one or more of the images depicted a
minor under the age of 12. Thus, Morrissey was subject to a
maximum sentence of 10 years for possession, as opposed to a
20-year maximum sentence. 18 U.S.C. § 2252(b)(2).
Morrissey was sentenced to 120 months imprisonment on the
possession conviction and 180 months imprisonment on the
receipt conviction to be served concurrently.
raises seven issues on appeal: double jeopardy, insufficient
evidence, improper venue, a constructive amendment to the
indictment, a material variance from the indictment, a
Confrontation Clause and hearsay violation, and prosecutorial
first address Morrissey's claim that the district court
erred by failing to instruct the jury that it could not
convict him for both possession and receipt based on the same
facts. Because Morrissey failed to request such an
instruction, our review is for plain error. United States
v. Huether, 673 F.3d 789, 798 (8th Cir. 2012). "To
establish plain error, [Morrissey] must show an error that is
plain and that affects his substantial rights."
Id. at 796. We remedy plain "error only if it
seriously affects the fairness, integrity or public
reputation of judicial proceedings." Id.
(internal quotation marks omitted).
Double Jeopardy Clause of the Fifth Amendment protects a
defendant from "[m]ultiple punishments for the same
criminal offense." United States v.
Muhlenbruch, 634 F.3d 987, 1002 (8th Cir. 2011)
(alteration in original) (internal quotation marks omitted).
To establish a Double Jeopardy violation, a defendant
"must show that he was convicted of two offenses that
are in law and fact the same offense." Id.
(internal quotation marks omitted). Two offenses are
considered the same offense for Double Jeopardy purposes
unless each offense "requires proof of a fact which the
other does not." Id. 1002-03 (internal
quotation marks omitted).
of child pornography is a lesser-included offense to receipt
of child pornography." United States v.
Zavesky, 839 F.3d 688, 695 (8th Cir. 2016). That is to
say that proof of receipt of child pornography
"necessarily includes proof of possession of child
pornography." Muhlenbruch, 634 F.3d at 1003.
Thus, convicting a defendant for both possession and receipt
based on the same conduct would violate the Double Jeopardy
Clause. Zavesky, 839 F.3d at 695.
the government is not prohibited from charging [a defendant]
with both a greater and lesser offense, the jury must be
instructed that they cannot convict him for both offenses
based on the same facts." Huether, 673 F.3d at
798. The jury "must be tasked with separating the
evidence in considering the counts separately, and instructed
that they may not convict [the defendant] of both counts
based on overlapping evidence." Id.
Huether, we found plain error where the court failed
to instruct the jury that receipt and possession convictions
cannot be based on the same images. Id. at 798-99.
Although multiple images were found on various hard drives
and CDs, neither the indictment nor the evidence at trial
"specif[ied] which images [the defendant] was charged
with receiving and which he was charged with
possessing." Id. at 799. Because the defendant
was potentially convicted on both counts for the same images,
we ordered the district court to vacate one of the
convictions. Id.; but see Zavesky, 839 F.3d
at 695-96 (upholding conviction for both receipt and
possession where indictment listed different dates for
receipt and possession charges and prosecutor presented
evidence at trial of two separate computer folders: one where
images were downloaded and another where a video was saved).
the indictment did not specify which images went to receipt
and which to possession, but it did list different-albeit
overlapping-dates for the two counts. The government argues
that the Dell laptop images supported the receipt conviction
and the Seagate hard drive images supported the possession
conviction. But, at trial-particularly in closing
argument-the government did not make a clear enough
distinction between the images. Rather, the prosecutor
repeatedly suggested in closing that the defendant could be
convicted of possession for images found on either the laptop
or the hard drive and even specifically stated that Morrissey
was "charged with possession of the Seagate hard drive
and Dell laptop." Moreover, the prosecutor suggested
both convictions could be based on the very same image,
stating, "I only have to prove to you that one of these
images is child pornography." Because the jury could
have convicted Morrissey of both receipt and possession based
on the same image or images found on the Dell laptop, we find
failure to instruct was plain error. See Huether,
673 F.3d at 798. We therefore remand to the district court to
vacate the conviction and sentence of the lesser-included
possession offense. See United States v. Carpenter,
422 F.3d 738, 747 (8th Cir. 2005) (remanding to district
court to vacate conviction for lesser-included offense).
conclusively addressed Morrissey's conviction for
possession of child pornography, we now turn to his remaining