United States v. Michael Schnittker , 807 F.3d 77 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4905
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SCHNITTKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:14-cr-00086-AJT-1)
Argued: October 29, 2015 Decided: December 2, 2015
Before WILKINSON, SHEDD, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Shedd and Judge Wynn joined.
ARGUED: Cary Citronberg, THE LAW OFFICES OF JOHN ZWERLING, P.C.,
Alexandria, Virginia, for Appellant. Christopher John Catizone,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: John Kenneth Zwerling, THE LAW OFFICES OF
JOHN ZWERLING, P.C., Alexandria, Virginia, for Appellant. Dana
J. Boente, United States Attorney, Matt J. Gardner, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:
This appeal involves the application of the Double Jeopardy
Clause when a criminal defendant pleads guilty to one crime in
an indictment and elects to go to trial on the other. Appellant
Michael Schnittker appeals his conviction for receipt of child
pornography in violation of 18 U.S.C. § 2252(a)(2). Schnittker
argues that his prosecution and conviction under 18 U.S.C.
§ 2252(a)(2) should have been barred by the Fifth Amendment’s
Double Jeopardy Clause because of his earlier plea to possession
of child pornography in violation of 18 U.S.C. § 2252(a)(4).
Because we find no double jeopardy violation, we reject
Schnittker’s argument and affirm his conviction.
I.
On November 7, 2013, federal agents executed a search
warrant on Schnittker’s home. During the search, the agents
seized two hard drives: a Western Digital hard drive and a
Maxtor hard drive. Computer forensic analysis showed that the
hard drives collectively contained approximately 18,000
pornographic images or videos, and that a great many of the
images or videos on each hard drive were of child pornography.
On March 6, 2014, a grand jury indicted Schnittker for
receipt of child pornography, in violation of 18 U.S.C.
§ 2252(a)(2) (Count 1), and possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4) (Count 2).
2
The indictment spoke in general terms. Both Count 1 and
Count 2 referred to “any visual depiction of a minor engaging in
sexually explicit conduct . . . .” J.A. 14-15. And neither Count
1 nor Count 2 named the child pornography files or hard drives
that supported the prosecution. In addition, the indictment’s
forfeiture notice provided that “[u]pon a conviction for
violating 18 U.S.C. Sections 2252(a)(2) or (a)(4), the defendant
MICHAEL SCHNITTKER shall forfeit to the United States any and
all matters which contain visual depictions of minors engaged in
sexually explicit conduct . . . .” J.A. 16. The notice listed
Schnittker’s “Generic Computer” and both the Western Digital
hard drive and the Maxtor hard drive as property to be forfeited
upon conviction.
A few weeks later, defense counsel informed the government
that Schnittker intended to plead guilty to Count 2 (the
possession charge) and go to trial on Count 1 (the receipt
charge). Perhaps sensing a double jeopardy claim in the offing,
the government sent an email to defense counsel to “make it
express” that the child pornography on the Maxtor hard drive
would support Count 1 and the child pornography on the Western
Digital hard drive would support Count 2. J.A. 252. Defense
counsel then asked the government to clarify what child
pornography was on each hard drive. In its reply, the government
attached spreadsheets that listed the child pornography files on
3
each hard drive reviewed by the forensics expert. A review of
these spreadsheets showed that at least some of the file names
on the Maxtor hard drive were different from the file names on
the Western Digital hard drive. The government told defense
counsel that, “[a]t trial, [it] could use any of the child
pornography from the Maxtor hard drive to support the receipt
count.” J.A. 251.
In conjunction with Schnittker’s decision to plead guilty
to Count 2 (possession), Schnittker, defense counsel, and the
government signed a statement of facts detailing the evidence
supporting Schnittker’s plea. The statement of facts named the
Western Digital hard drive but did not mention the Maxtor hard
drive. It provided that the Western Digital hard drive
“contained over a thousand images and videos of child
pornography.” J.A. 21. The statement of facts also had a general
reservation provision stating that it did “not include each and
every fact known to the Defendant or the government, and it is
not intended to be a full enumeration of all of the facts
surrounding the Defendant’s case.” J.A. 22.
Schnittker’s plea hearing occurred on April 17, 2014. At
the start of the hearing, the government made one point “for the
record.”
The Government: “[T]he plea is to Count 2, which is
possession. Count 1 is for receipt of child
pornography. Just to state for the record, there are
4
two external hard drives. They both contain child
pornography in this case. The Western Digital hard
drive is the -- I’m sorry. The possession count is for
the Western Digital hard drive and the child
pornography on that. The other hard drive is a Maxtor
hard drive. The child pornography on that goes to the
receipt count and won’t be the subject of the plea
today.”
The Court: “All right. Is the second hard drive the
only hard drive the government is relying on for the
purposes of the receipt charge?”
The Government: “Yes.”
The Court: “All right.” J.A. 26-27.
Later during the hearing, the district court asked the
government about the proof it would have used at trial on the
possession count. The government explained that it would have
relied on the child pornography on the Western Digital hard
drive. Consistent with the statement of facts, the government
did not mention the Maxtor hard drive. J.A. 39-40.
Also during the hearing the district court conducted a plea
colloquy with Schnittker. The district court confirmed that
Schnittker’s plea was “knowing and voluntary,” that he did not
have “any difficulty understanding . . . anything about the[]
proceedings,” that he did “not disagree with anything the
government ha[d] told the Court about [his] conduct” and that he
“understood everything” contained in the statement of facts.
J.A. 43, 29, 41. At the conclusion of the hearing, Schnittker
pled guilty to Count 2.
5
On April 24, 2014, the government obtained a superseding
indictment. This indictment differed from the first indictment
only in that it moved the start date of the unlawful activity
covered by Count 1 forward from January 2011 to April 2010.
Shortly after obtaining the superseding indictment, the
government moved to dismiss that indictment’s Count 2, as
Schnittker had already pled guilty to possession of child
pornography under the first indictment.
A few days later, the government filed a Rule 404(b)
notice, stating that it would use Schnittker’s plea to
possession of child pornography on the Western Digital hard
drive to prove in the upcoming trial that Schnittker received
child pornography on the Maxtor hard drive.
At Schnittker’s bench trial for receipt of child
pornography the government presented evidence showing that the
Maxtor hard drive contained child pornography. A government
witness acknowledged that the Maxtor hard drive contained child
pornography files that were also on the Western Digital hard
drive, but she also confirmed that there were “a lot of files
that were not duplicates.” J.A. 162-63. And in its response to
Schnittker’s motion to dismiss on double jeopardy grounds, the
government pointed to the spreadsheets it had produced showing
that the Maxtor hard drive contained files different from those
on the Western Digital hard drive.
6
At the close of the government’s evidence, Schnittker moved
to dismiss the superseding indictment, claiming that his
prosecution under Count 1 violated the Double Jeopardy Clause.
Specifically, Schnittker argued that his plea to possession
under Count 2 covered both the Western Digital hard drive and
the Maxtor hard drive, and that this plea, in conjunction with
the date change in the superseding indictment, barred the
government from prosecuting and convicting him for receipt under
Count 1. The district court took briefing on the double jeopardy
question and, on August 18, 2014, issued a written order denying
Schnittker’s motion.
At the same time that it ruled on Schnittker’s double
jeopardy motion, the district court denied Schnittker’s Rule 29
motion for judgment of acquittal, finding that the evidence the
government had presented relating to the Maxtor hard drive
allowed a reasonable trier of fact to make a finding of receipt
of child pornography beyond a reasonable doubt. The district
court found Schnittker guilty of receipt of child pornography
under Count 1 the following day, and entered judgment on Count 1
and Count 2 on November 21, 2014. Schnittker timely appealed,
and continues to argue that his earlier guilty plea under Count
2 barred the government’s later prosecution and conviction under
Count 1.
7
II.
We review de novo questions concerning the Double Jeopardy
Clause. United States v. Studifin, 240 F.3d 415, 418 (4th Cir.
2001). That clause protects persons from being “subject for the
same offence to be twice put in jeopardy of life or limb.” U.S.
Const. amend. V. One aspect of this protection prohibits the
government from subjecting a person to “multiple punishments for
the same offense.” Ohio v. Johnson, 467 U.S. 493, 498 (1984);
Missouri v. Hunter, 459 U.S. 359, 366-67 (1983). This
prohibition attaches if the subject offenses “are in law and in
fact the same offense.” United States v. Crew, 538 F.2d 575, 577
(4th Cir. 1976); see also Blockburger v. United States, 284 U.S.
299, 304 (1932).
As the government notes, Appellee’s Br. at 8-9, our sister
circuits appear to agree that possession of child pornography is
a lesser-included offense of receipt of child pornography,
reasoning that the crime of possession of child pornography
under 18 U.S.C. § 2252(a)(4) does not contain an element
different from the elements that constitute the crime of receipt
of child pornography under 18 U.S.C. § 2252(a)(2). United States
v. Benoit, 713 F.3d 1, 14 (10th Cir. 2013) (reviewing cases).
Assuming without deciding that the subject offenses in this case
are the same in law, we turn to the question of whether the two
8
offenses with which Schnittker was charged are also the same in
fact.
“To determine whether two offenses . . . are the same in
fact, a court must ascertain whether a reasonable person
familiar with the totality of the facts and circumstances” would
construe the count to which the defendant pled guilty “to cover
the offense charged” later in the prosecution. See United States
v. Olmeda, 461 F.3d 271, 282 (2d Cir. 2006). This is an
“objective” inquiry. Id. And it is not limited to the indictment
language only, but extends to “the entire record” of the
proceedings. Benoit, 713 F.3d at 17. Importantly, the inquiry
must focus on what a reasonable person would understand at the
time the defendant entered his plea, because that is the time at
which jeopardy attaches. Olmeda, 461 F.3d at 282.
Our review of the record in this case leads us to conclude
that an objective person in Schnittker’s position would have
understood that he was pleading guilty to possession of child
pornography only in regard to the child pornography on the
Western Digital hard drive. Admittedly, Count 1 and Count 2 of
the indictment referred generally to child pornography, the
indictment’s forfeiture clause referenced both hard drives, and
the statement of facts supporting Schnittker’s guilty plea
contained an open-ended reservation provision. But these points
are not enough to overcome the mass of evidence demonstrating
9
that, at the time Schnittker pled guilty, a reasonable person
would know full well that he was pleading guilty only in regard
to the child pornography on the Western Digital hard drive.
As detailed above, once Schnittker disclosed his intention
to plead guilty to Count 2, the government made it “express”
that Schnittker’s guilty plea would be based only on the child
pornography on the Western Digital hard drive. Moreover, the
government then produced spreadsheets delineating the different
file names on the respective hard drives to make abundantly
clear that the child pornography on the Maxtor hard drive
supported Count 1 and the child pornography on the Western
Digital hard drive supported Count 2.
The government emphasized this point again in open court
just before Schnittker tendered his guilty plea in regard to the
possession count. 1 Finally, both defense counsel and Schnittker
signed a statement of facts in connection with Schnittker’s
guilty plea that named only the Western Digital hard drive, and
the government mentioned only that hard drive when it outlined
for the district court the evidence it would have used were
1
The Supreme Court has directed lower courts not to rely on
a defendant’s “supposed acquiescence to a prosecutorial
statement” when identifying the scope of a prior crime for
purposes of the Armed Career Criminal Act. Descamps v. United
States, 133 S. Ct. 2276, 2289 (2013). In this case, though, we
do not face such an issue, because an objective review of the
record makes clear that Schnittker accepted the prosecutor’s
statement.
10
Schnittker to have gone to trial on the possession count. All of
this compels us to conclude that a reasonable person familiar
with the totality of the facts and circumstances would have
understood that he was pleading guilty only in regard to the
child pornography on the Western Digital hard drive.
Having ascertained the scope of Schnittker’s plea, we must
now determine whether the unlawful conduct encompassed by
Schnittker’s later prosecution for receipt of child pornography
is distinct from that which was covered by his earlier plea. The
federal courts of appeals have relied on various manifestations
of distinct conduct to determine that separate counts were not
the same in fact. See United States v. Teague, 722 F.3d 1187,
1191 (9th Cir. 2013) (separate CDs and hard drives may support
separate conduct); Benoit, 713 F.3d at 16-17 (separate images
may support separate conduct); see also United States v.
Halliday, 672 F.3d 462, 470-71 (7th Cir. 2012) (separate videos
or dates may support separate conduct); United States v. Bobb,
577 F.3d 1366, 1375 (11th Cir. 2009), cert. denied, 560 U.S. 928(2010) (separate images or dates may support separate conduct).
In United States v. Polouizzi, the Second Circuit rejected
the defendant’s double jeopardy claim because it concluded that
no double jeopardy violation exists so long as “the possession
conviction was based on an image the receipt of which did not
form the basis of the receipt conviction.” 564 F.3d 142, 159 (2d
11
Cir. 2009). This is a sensible tack, because different images or
videos display different human beings or different sexual
activities. The images are thus in a genuine sense distinct.
Distinctiveness is in fact all the more likely in cases such as
this where the child pornography collection is truly massive.
In this case, for example, Schnittker admitted to
possessing over 1,000 images or videos of child pornography on
the Western Digital hard drive, while the district court made
clear that it was relying on four videos on the Maxtor hard
drive as the basis for its judgment on the receipt conviction.
Moreover, a government witness testified that many files on the
Maxtor hard drive “were not duplicates” of the files on the
Western Digital hard drive. Consequently, because the defendant
admitted to possessing over one thousand images or videos of
child pornography, at least some of which did not ground the
receipt conviction, there is more than sufficient proof in the
record that “the possession conviction was based on an image
the receipt of which did not form the basis of the receipt
conviction.” Polouizzi, 564 F.3d at 159.
In sum, the two offenses at issue in this case were not the
same in fact. The prosecution and conviction of Schnittker under
12
Count 1 following his guilty plea under Count 2 thus did not
contravene the Fifth Amendment. 2
III.
The prosecution and conviction of Michael Schnittker for
receipt of child pornography in violation of 18 U.S.C.
§ 2252(a)(2) was premised on facts distinct from those covered
by Schnittker’s guilty plea to possession of child pornography
in violation of 18 U.S.C. § 2252(a)(4). Accordingly, Schnittker
was subject to multiple punishments for multiple offenses, not
multiple punishments for the same offense.
Schnittker’s only argument on appeal concerns the double
jeopardy question. Because we find no double jeopardy violation,
we affirm the district court’s judgment.
AFFIRMED
2 Schnittker also raises a successive prosecution argument
related to the date change in the superseding indictment. We
agree with the district court, however, that “given the Court’s
conclusion that the receipt charge did not involve the same
offense as the possession charge to which the defendant pled
guilty, it is not necessary for the Court to consider whether
the superseding indictment in fact initiated a new prosecution,
as the defendant urges, or was simply part of the same
proceeding, in which case Ohio v. Johnson [467 U.S. 493 (1984)]
would seem to control.” Mem. Op. at 3 n. 1, J.A. 257.
13