Third Circuit clarifies appellate procedure and substantive sentencing rules (including an issue of first impression) in favor of defendants

In United States v. Miller, No. 06-5187 (3d Cir. June 2, 2008), Miller had been found guilty at trial of receiving and possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) & 2252A(a)(5)(B), respectively. The District Court entered guilty verdicts on both counts, and sentenced Miller to concurrent 46-month prison terms. In calculating the advisory Sentencing Guidelines range, the District Court found that Miller had committed perjury during trial based on testimony about his adult pornography collection, and therefore applied a two-level enhancement for obstruction of justice.

On appeal, the Third Circuit vacated the District Court’s judgment and remanded for re-sentencing. Although the Court, in a 2-1 decision, found that the trial evidence was sufficient to uphold Miller’s conviction for receiving pornography, the Court unanimously accepted Miller’s argument that the Double Jeopardy Clause barred convictions for both receiving and possessing the same images (Miller did not challenge the possession conviction), and thus the District Court’s entry of guilty verdicts on both counts was plain error . Further, the Court ruled that the trial record did not support a finding of perjury, and therefore the two-level obstruction of justice enhancement was improper.

Addressing first Miller’s sufficiency-of-the-evidence argument, the Court, as a threshold matter, rejected the Government’s argument that Miller waived a sufficiency-of-the-evidence claim on appeal because he did not raise the issue during trial via a motion under Fed. R. Crim. P. 29(a), but rather, filed a timely post-trial motion for acquittal under Rule 29(c). The Court held that the language of Rule 29(c) makes clear that a court of appeals has authority "to exercise plenary review over a claim raised in a [timely] Rule 29(c) motion without regard to whether the claim was earlier raised in a Rule 29(a) motion."

The Court then turned to Miller’s argument that while there may have been sufficient evidence to support a conviction for possessing child pornography, that evidence was insufficient to support a conviction for receiving, and to conclude otherwise, Miller argued, would "extinguish the distinction between the offense of knowing receipt and the offense of knowing possession." The Court agreed 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," noting that "a person may come to knowingly possess a computer file without ever knowingly receiving it" and thus "while a person who ‘knowingly receives’ child pornography will necessarily ‘knowingly possess’ child pornography, the obverse is not the case." But having concluded that Miller raised a "colorable" sufficiency-of-the -evidence issue for appeal on the receiving count, the Court concluded that "considering all of the evidence in its totality," even though "there certainly is evidence that Miller did not receive the images knowingly a reasonable juror could look to contrary evidence and conclude otherwise."

The Court next addressed Miller’s argument – not raised in the District Court, and thus reviewed for plain error – that the District Court’s entry of separate convictions for receiving and possessing child pornography violated the Double Jeopardy Clause because § 2252A(a)(5)(B) punishes a lesser included offense of that punished by § 2252A(a)(2). Though observing that this issue was one of first impression in this Circuit, the Court stated that the law was clear as a general matter that possession of a contraband item is a lesser-included offense of receipt of the item, citing Ball v. United States, 470 U.S. 856 (1985). Ruling that Ball controlled, the Court held that § 2252A(a)(5)(B) is a lesser included offense of § 2252A(a)(2), and that entry of separate convictions for the same offense contravenes the Double Jeopardy Clause – and that such error met the standards for plain error review.

In so ruling, the Court rejected the Government’s argument that § 2252A(a)(2) and § 2252A(a)(5)(B) punish separate offenses because § 2252A(d) provides an affirmative offense to a defendant who possessed less than three images of child pornography and either promptly took reasonable steps to destroy them or reported the matter to law enforcement. The Government argued that this potentially available affirmative defense constitutes an additional "element" of § 2252A(a)(5)(B) for double jeopardy purposes. The Court held, however, that the possibility that a defendant could assert an affirmative defense under § 2252A(a)(5)(B) was "immaterial to whether the two offenses are the same under the same-elements test" of Blockburger v. United States, 284 U.S. 299, 304 (1932). Under the same-elements test, affirmative defenses are not to be considered in comparing the charged offenses – the elements to be considered are only "those that must necessarily be proved to establish the commission of a charged offense."

Finally, the Court addressed Miller’s argument that the District Court erred in finding that he committed perjury during trial in his testimony about the nature of his adult pornography collection. Miller argued that the District Court erroneously concluded that he gave willfully false testimony on a material matter when he testified at trial – in response to the question "[d]id you have [adult] sadomasochistic pictures?" — "[n]ot that I’m aware of, no."

As an initial matter, the Court found that there was no basis to find – as a sentencing enhancement for perjury would require – that Miller was both aware that he possessed the asserted "sadomasochistic" images, and that he considered those particular images to be "sadomasochistic." The Court rejected the District Court’s inference that Miller was aware that he possessed those adult images simply because they were found on the same zip disk containing the images of child pornography, which the jury found that he knowingly possessed. The Court held that the jury’s verdict of knowing possession of some illegal images on the zip disk was "not, of itself, sufficient to support a finding that Miller willfully gave false testimony . . . . the perjury of the defendant must . . . be clearly established, and supported by evidence other than the jury’s having disbelieved him."

Further, the Court found that Miller’s response could not be found to be willfully false because the Government’s question was insufficiently precise, in two respects. First, the Government did not lay a proper foundation for the question "Did you have sadomasochistic pictures?" The Government was referring to five specific image files, but never established at trial– through Miller, any other witness, or a proffer of the images themselves – that Miller knew what images the Government was referring to. The Court reasoned that "[w]ithout such a foundation, there is no basis for concluding that Miller was aware of which assertedly ‘sadomasochistic pictures’ the prosecutor might have had in mind."

Second, the Court found that even if Miller had been aware that he possessed those particular five images, the Government’s questioning failed to establish that Miller’s testimony was willfully false when he denied possession of "sadomasochistic" pictures. The Court found that because the Government did not clarify that Miller understood the meaning of the term "sadomasochistic" – which the Court found to be "both contested and context-dependent" – the Government provided no basis for the Court to conclude that Miller was aware that he possessed pictures that he believed to be "sadomasochistic."

Finally, the Court held that the District Court erred in finding that Miller’s allegedly false testimony concerned a matter that was "material." The District Court found that testimony about images of adult sadomasochism were material to Miller’s offense because possession of such images "may well reflect interests in more deviant sexual practices." The Court of Appeals rejected that conclusion, holding – in line with decisions in the Second and Fifth Circuits – that "a defendant’s interest in unusual adult pornography is irrelevant to whether he is guilty of a child pornography count."

Circuit Judge Rendell filed a separate opinion concurring in part and dissenting in part. Judge Rendell agreed with the majority that knowing possession of child pornography is a lesser-included offense of knowing receipt, and that the perjury enhancement was improperly applied.

But Judge Rendell disagreed with the majority on the sufficiency-of-evidence issue, concluding that the trial evidence was insufficient to support a verdict that Miller knowingly received 11 images of child pornography included in computer files that totaled more than 1200 images. Judge Rendell noted that the record included "no non-speculative evidence that would tend to show, let alone prove beyond a reasonable doubt, that Miller received the 11 images . . . knowing that they were child pornography." Judge Rendell reasoned that "[g]iven 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 [in Miller’s possession], let alone prove they were "knowingly received" by Miller is, to me, striking."