UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4938

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DANIEL NICHOLAS BUCZKOWSKI,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. James C. Fox, Senior 

District Judge. (5:08-cr-00159-F-1)

Argued: September 20, 2011 Decided: December 20, 2011

Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Raleigh, North Carolina, for Appellant. David A. 

Bragdon, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal 

Public Defender, G. Alan DuBois, Assistant Federal Public 

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North 

Carolina, for Appellant. George E. B. Holding, United States 

Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant 

United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, 

Raleigh, North Carolina, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Daniel Buczkowski was convicted of one count of possessing 

child pornography, see 18 U.S.C. § 2252(a)(4)(B), and twentyseven counts of transportation of child pornography in 

interstate or foreign commerce, see 18 U.S.C. § 2252(a)(1). 

Buczkowski appeals, challenging the convictions and sentences 

imposed on the transportation counts only. While we find the 

government’s evidence sufficient to establish that Buczkowski 

transported child pornography, that evidence established only a 

single act of transportation. Accordingly, we affirm the 

conviction and sentence on the first transportation count, 

vacate the remaining transportation convictions and sentences, 

and remand for resentencing.

I.

After retiring from the Army, Buczkowski went to work as a 

truck driver for Kellogg, Brown & Root (“KBR”), a military 

contractor. Buczkowski worked for KBR in Iraq from November 

2004 through February 2006 and from December 10, 2006 through 

March 29, 2007. Buczkowski had a password-protected laptop 

computer that he used at home and took with him to Iraq. The 

evidence presented at trial established that when he was in 

Iraq, his computer was often in a shared lounge space and was 

sometimes used by people other than Buczkowski.
4

Buczkowski was injured on March 21, 2007. He was sent to a 

clinic in Kuwait for medical evaluation, where it was determined 

that he should return to the United States for treatment. 

Buczkowski left from Kuwait, without returning to the base in 

Iraq, and arrived in Fayetteville, North Carolina, on March 29, 

2007. KBR later shipped Buczkowski’s personal effects to him; 

the shipment arrived around the first week of May 2007.

On May 8, 2007, Buczkowski took his laptop to be repaired. 

While repairing the computer, the technician found child 

pornography on the computer and called the police. Twenty-seven 

images qualifying as child pornography were found on the 

computer, all of which had been loaded onto the computer on 

January 4, 2007, when Buczkowski was in Iraq. Buczkowski was 

indicted on one count of possession of child pornography and 

twenty-seven counts (one for each image) of transportation of 

child pornography.

A jury convicted Buczkowski of all counts. The district 

court sentenced him to 240 months’ imprisonment on the first 

transportation count, a consecutive 240 months’ on the second 

transportation count, and concurrent sentences on the remaining 

transportation counts. 
5

II.

Section 2252(a) prohibits “knowingly transport[ing] or 

ship[ping] [child pornography] using any means or facility of 

interstate or foreign commerce or in or affecting interstate or 

foreign commerce by any means.” 18 U.S.C. § 2252(a)(1). At 

trial, the government sought to prove that Buczkowski 

transported the child pornography by bringing the computer with 

him when he returned from Iraq at the end of March. Buczkowski 

contended that he had no knowledge the child pornography images 

were on his computer and that he did not bring the computer with 

him when he returned from Iraq. On appeal, Buczkowski concedes 

the sufficiency of the evidence showing that he knowingly 

possessed the child pornography, but he argues that the 

government’s evidence was insufficient to establish that he 

transported the pornography by bringing the laptop with him when 

he returned from Iraq.

When considering the sufficiency of the evidence supporting 

a criminal conviction, we must view “the evidence in the light 

most favorable to the government, assuming its credibility, and 

drawing all favorable inferences from it.” United States v. 

Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011), petition for 

cert. filed, (U.S. Oct. 4, 2011) (No. 11-6757). We must affirm 

the jury’s verdict “if any rational trier of fact could have 

found the essential elements of the crime charged beyond a 
6

reasonable doubt.” Id.

The direct evidence came through the testimony of Erika 

Pennell, the niece of Buczkowski’s wife. Pennell began living 

with the Buczkowskis when she was sixteen, and she and her young 

daughter were living with the Buczkowskis in March 2007 when 

Buczkowski returned from Iraq. Pennell and Buczkowski began a 

sexual relationship at some point, and the laptop contained 

pictures of them engaging in sexual acts. Some of the pictures 

of Pennell and Buczkowski were included in two photo collages 

found on the laptop (J.A. 188-89, 283-84); the collages also 

contained some of the child pornography images at issue in this 

case, as well as images of adult men and women engaged in sexual 

acts. The collages were created on January 8, 2007, and January 

27, 2007, when Buczkowski was in Iraq. (J.A. 185-86)

 In our view, the government presented 

sufficient evidence, both direct and circumstantial, from which 

the jury could have rationally concluded that Buczkowski 

transported the computer.

On direct examination, the government asked Pennell if she 

was living in the house when Buczkowski returned in March 2007. 

Her answer was, “Yes, I was.” (J.A. 282) The government then 

asked, “And did he bring this laptop computer with him?” Her 

answer was an unqualified, “Yes, he did.” (J.A. 282) Pennell’s 

testimony, standing alone, would thus seem to be sufficient to 

establish that Buczkowski transported the laptop. Buczkowski, 
7

however, argues that his cross-examination of Pennell 

“clarified” that testimony and established that she did not see 

the computer until May, when the KBR shipment arrived.

Buczkowski points to the following exchange between his 

attorney and Pennell as providing the “clarification” of 

Pennell’s testimony:

Q. Now, you said he brought his computer back with 

him?

A. Yes.

Q. And did you see the bag it came in?

A. No, I saw the computer.

Q. And he was using it while he was there at the end 

of March?

A. No, he plugged it into the Internet and it 

crashed, it wouldn’t even come up.

Q. So, when did you see him using it?

A. I didn’t say I saw him using it, I said I saw the 

computer.

Q. Was it in April you saw it? Was it in May you saw 

it?

A. I saw it when he came back. He was with it 

sitting in the chair in the living room hooking it up 

to the Internet and when he hooked it up, it started 

to do some kind of -- type of download and it crashed. 

He could not even turn it on.

Q. Was it the same day he came in?

A. I don’t know.

(J.A. 297) Because Buczkowski took the laptop for repair in 

early May, Buczkowski argues that Pennell’s testimony, “taken in 

context,” Brief of Appellant at 22, establishes that Pennell did 
8

not see the laptop until May, after the KBR shipment arrived. 

We disagree.

Buczkowski’s claim is dependent on several unstated 

assumptions -- that the only time Pennell saw the computer was 

when Buczkowski discovered the problem with the computer; that 

Buczkowski discovered the problem as soon as he received the 

computer; and that he took the computer to be repaired as soon 

as it crashed. The evidence presented at trial, however, did 

not compel the jury to reach those conclusions. The jury could

reasonably have concluded that Buczkowski tried to use the 

laptop as soon as he got home in March and that it crashed then, 

but that, because there were other computers in the house (along 

with a thumb drive containing adult pornography), Buczkowski did 

not get around to taking it to be repaired until May. While the 

testimony of Buczkowski’s wife largely supported the timeline 

that Buczkowski urges on appeal, the jury was not required to 

credit her testimony over Pennell’s. See United States v. 

Burgos

Pennell’s personal history, as brought out on crossexamination, gave the jury ample reason to question her 

credibility, and the cross-examination about when she saw the 

, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (“[I]f the 

evidence supports different, reasonable interpretations, the 

jury decides which interpretation to believe.” (internal 

quotation marks omitted)).
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computer may well have cast doubt on the certainty she expressed 

on direct examination. The fact remains, however, that Pennell 

testified that Buczkowski had the laptop when he returned home 

in March, and, as a reviewing court, we are not at liberty to 

ignore or recast her testimony. “A fundamental premise of our 

criminal trial system is that the jury is the lie detector,” 

United States v. Scheffer, 523 U.S. 303, 313 (1998) (internal 

quotation marks omitted), and it is “the unique province of the 

jury to sift through conflicting evidence, assess the 

credibility of the witnesses, and find facts,” United States v. 

Thomas, 467 F.3d 49, 55 (1st Cir. 2006). Thus, when considering 

the sufficiency of the evidence supporting a criminal 

conviction, this court must assume that the jury found the 

government’s witnesses credible, and we “must assume that the 

jury resolved all contradictions in testimony in favor of the 

[g]overnment.” Penniegraft

Moreover, even without Pennell’s testimony, the record 

contains sufficient circumstantial evidence to support the 

determination that Buczkowski transported the laptop. 

, 641 F.3d at 572 (internal quotation 

marks omitted). Given this strict standard of review, we simply 

cannot accept Buczkowski’s contention that Pennell’s testimony 

was insufficient to establish that he transported the laptop by 

bringing it from Iraq to the United States.

See

United States v. Martin, 523 F.3d 281, 289 (4th Cir. 2008) (“As 
10

we have observed repeatedly, circumstantial evidence is not 

inherently less valuable or less probative than direct evidence

and may alone support a guilty verdict.” (internal quotation 

marks omitted)).

The evidence established that most of the child pornography 

images were last accessed and viewed on the laptop on March 25, 

2007 (J.A. 184), when Buczkowski was in Kuwait for evaluation of 

his injury. (One image was last accessed on a date in May 2007 

when the laptop was being repaired.) (J.A. 154-55) Buczkowski’s 

laptop was password-protected, and the password had to be 

entered as soon as the computer was turned on. (J.A. 182)

While there was evidence that Buczkowski let others use his 

laptop while he was in Iraq, the evidence did not establish that 

Buczkowski actually shared his password with others. Instead, 

the evidence suggested that others used the laptop after 

Buczkowski had logged on. (J.A. 476-77) Moreover, the child 

pornography images and the pictures of Buczkowski engaging in 

sexual acts with Pennell were located on the computer in a 

folder that required a different password to gain access. (J.A. 

180-81, 188-89) Given the presence of the Pennell pictures, the 

jury could reasonably have concluded that, even if Buczkowski 

had shared his log-on password, he would not have shared the 

password for the image folder; that only Buczkowski knew the 

passwords for both the computer and the image folder; and that 
11

it therefore was Buczkowski who turned on the computer and 

viewed the images on March 25. Because Buczkowski was in Kuwait 

on March 25 and did not return to base in Iraq before flying 

back to the United States, this evidence supports the conclusion 

that Buczkowski brought the laptop with him when he returned 

home on March 27.

The evidence about the availability of medical treatment in 

Iraq likewise lends support to the government’s view that 

Buczkowski had the computer with him when he returned to the 

United States. The base where Buczkowski was stationed had 

limited ability to provide medical care. Employees with medical 

issues that could not be treated on-base were sent to medical 

clinics in Kuwait or Dubai, which required travel from the base 

to the Green Zone in Baghdad, from the Green Zone to the Baghdad 

airport, and from the airport to Kuwait or Dubai. As the facts 

of this case establish, the process of getting treatment could 

take several days: Buczkowski was injured on March 21; arrived 

in Baghdad from the KBR base on March 23; left Baghdad for 

Kuwait on March 24; was seen at the clinic in Kuwait on March 

26; and departed Kuwait on March 28. The KBR travel request 

form prepared in connection with Buczkowski’s injury showed that 

he would spend one night in Baghdad before leaving for Kuwait 

(J.A. 393-94), and the jury could reasonably have concluded that 

Buczkowski would have known the travel-and-treatment process was 
12

a long and drawn out one, thus making it more likely that

Buczkowski would have taken his computer with him to have 

something to pass the time.

Finally, Buczkowski’s wife testified that Buczkowski took 

his military backpack when he left

Accordingly, after considering the record as a whole in the 

light most favorable to the government and giving the government 

the benefit of all inferences that reasonably can be drawn from 

that evidence, we conclude that the evidence was sufficient to 

support the jury’s determination that Buczkowski transported 

child pornography.

for Iraq and that the 

computer was in the backpack. (J.A. 409) Her testimony 

therefore established that the computer fit in the backpack, and 

the jury could reasonably have concluded that the laptop was in 

the backpack on the return trip and that Mrs. Buczkowski perhaps 

did not see it.

III.

As noted above, Buczkowski was indicted on and convicted of 

twenty-seven counts of transportation of child pornography --

one count for each image. The district court imposed sentences 

of 240 months’ imprisonment for the first transportation 

conviction, a consecutive 240 months’ imprisonment for the 

second conviction, and concurrent 240-month sentences for each 
13

of the remaining transportation convictions. On appeal, 

Buczkowski contends that the indictment was multiplicitous

because it split the single prohibited act of transporting child 

pornography into twenty-seven separate offenses, one for each 

image on the laptop. See United States v. Colton, 231 F.3d 890, 

908 (4th Cir. 2000) (“Multiplicity involves charging a single 

offense in more than one count in an indictment.” (internal 

quotation marks omitted)). Because the government’s evidence 

proved only a single act of transportation (transporting the 

laptop from Iraq to the United States), Buczkowski argues that 

he can be convicted and sentenced for only a single violation of 

§ 2252(a)(1).∗

 ∗ The Federal Rules of Criminal Procedure require objections 

to defects in an indictment to be made before trial; absent good 

cause, the failure to timely object amounts to waiver of the 

objection. See Fed. R. Crim. P. 12(b)(3)(B) & (e). Because 

Buczkowski did not object to the indictment before trial, the 

government argues he waived any multiplicity claim. See United 

States v. Colton, 231 F.3d 890, 909 (4th Cir. 2000) (“Failure to 

object to a count on grounds of multiplicity prior to trial 

generally waives that objection.”). Based on the unique facts 

of this case, we do not believe Rule 12 prevents us from 

considering the multiplicity issue in this case. The 

transportation counts were not plainly “ineluctably” 

multiplicitous until trial, thus good cause under Rule 12(e) 

relieved Buczkowski of the waiver. See United States v. 

Williams, 89 F.3d 165, 167 n.1 (4th Cir. 1996) (granting relief 

from Rule 12’s waiver provision because the defect in the 

indictment did not become apparent until trial, when the 

government’s evidence established that the counts in the 

indictment were “ineluctably contradictory”).

 We agree.
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Whether Buczkowski committed one or twenty-seven offenses 

by transporting the laptop containing twenty-seven images 

depends on what Congress intended to be “the allowable unit of 

prosecution” under the statute. Bell v. United States, 349 U.S. 

81, 81 (1955) (internal quotation marks omitted); see United 

States v. Dunford, 148 F.3d 385, 389 (4th Cir. 1998). At issue 

in Bell was the Mann Act, 18 U.S.C. § 2421, which at that time 

made it a crime to “knowingly transport[] in interstate or 

foreign commerce any woman or girl for the purpose of 

prostitution.” Bell, 349 U.S. at 82 (internal alteration 

omitted). The defendant in that case had transported two women 

in the same vehicle on a single interstate trip and had been 

convicted and sentenced for two violations of the statute. The 

Supreme Court found the statute ambiguous as to the intended 

unit of prosecution and held that the ambiguity must “be 

resolved against turning a single transaction into multiple 

offenses.” Id.

Section 2252(a)(1) makes it a crime to “knowingly 

transport[] or ship[] . . . in interstate or foreign commerce 

any visual depiction . . . of a minor engaging in sexually 

explicit conduct.” 18 U.S.C. § 2252(a)(1)(A). The central 

focus of the statute is the act of transporting, not the number 

of individual images transported, and the prohibition against 

transporting “any” images does not unambiguously make each image 

at 84. 
15

transported count as a separate offense. See Dunford, 148 F.3d 

at 389-90 (finding § 922(g)’s prohibition of possession of “any 

firearm” ambiguous as to the allowable unit of prosecution);

United States v. Coiro, 922 F.2d 1008, 1014 (2d Cir. 1991)

(noting that “any” “has typically been found ambiguous in 

connection with the allowable unit of prosecution, for it 

contemplates the plural, rather than specifying the singular” 

(internal quotation marks omitted)). Because the language of § 

2252(a)(1) is functionally identical to that in Bell, and 

because Buczkowski, like the defendant in Bell, transported 

multiple items through a single act of transportation, we 

believe Bell compels the conclusion that Buczkowski’s conduct 

amounted to only a single violation of the statute. See Bell, 

349 U.S. at 84; see also United States v. Gallardo, 915 F.2d 

149, 151 (5th Cir. 1990) (per curiam) (concluding that under § 

2252(a)(1), each separate act of transporting is a separate 

offense and that simultaneously mailing four separate envelopes 

was four separate acts of transportation, but noting that a 

“defendant arrested with one binder containing numerous 

photographs has committed only one act of transportation” 

(emphasis added)). The district court therefore erred by 

entering judgment and imposing sentences on twenty-seven 

separate counts.
16

While Buczkowski’s multiplicity claim is not waived under 

Rule 12(e) under the unique facts of this case, his failure to 

raise the issue below mandates application of plain-error 

review, which requires Buczkowski to show the existence of a 

plain error that affected his substantial rights. See, e.g., 

United States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011). In 

light of Bell and our cases addressing the multiplicity issue 

under other statutes, we believe the error was plain. See id.

(“An error is plain when it is obvious or clear under current 

law.” (internal quotation marks omitted)). The error affected 

Buczkowski’s substantial rights because a consecutive statutorymaximum sentence was imposed on the second conviction and the 

remaining transportation convictions themselves carry collateral 

consequences notwithstanding the concurrent sentences. See Ball 

v. United States, 470 U.S. 856, 865 (1985) (“The separate 

conviction, apart from the concurrent sentence, has potential 

adverse collateral consequences that may not be ignored.”); 

United States v. Bennafield, 287 F.3d 320, 324 (4th Cir. 2002) 

(special assessment imposed on concurrent sentence affected 

defendant’s substantial rights under plain-error review). 

Because it would affect the fairness of judicial proceedings to 

allow multiple convictions and sentences to be imposed for a 

single offense, we exercise our discretion to correct the error. 

See Bennafield, 287 F.3d at 324.
17

Accordingly, while we find no error in the first 

transportation conviction and sentence, we vacate the remaining 

transportation convictions and sentences (including special 

assessments) and remand for resentencing. See United States v. 

Burns, 990 F.2d 1426, 1438 (4th Cir. 1993) (“The signal danger 

in multiplicitous indictments is that the defendant may be given 

multiple sentences for the same offense. . . . [If] the 

defendant has suffered multiple convictions and faces multiple 

sentences, the appropriate remedy is to vacate all of them but 

one.”).

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED