### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-41380

UNITED STATES OF AMERICA, Plaintiff – Appellee
v. MARK WILLIAM WOERNER, Defendant – Appellant

Appeal from the United States District Court for the Southern District of Texas

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges. HIGGINSON, Circuit Judge: A f e deral jury convicted Defendant-Appellant Mark Woerner of tw o c o u n t s of possession of child pornography and t hree counts of distrib u t i o n of child pornography. On direct appeal, Woer n e r c h a l l e n g es (1) the district court’s denial

o f h is motion to suppress email records, (2) the sufficiency of the e v i d e n c e against him, and (3) the indictment and sentence, as multiplicitous. Finding no error, we AFFIRM. FACTS AND PROCEEDINGS This c hild p ornography prosecution arose out o f what the district court found were independent state and federal i n v estigations into p e er-to-peer file sharing of child pornography over the Internet. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D February22, 2013 Ly l e W . Cay ce Clerk Case: 11-41380 Document: 00512152043 Page: 1 Date Filed: 02/22/2013No. 11-41380

In the course of his work for the Internet Crimes A gainst Children Task Force, Detective Andrew Uhlir of the Wheaton, Illinois Police D epartment patrolled Gigatribe, an Internet peer-to-peer file-sharing n etwork, in search of adult male users w ho advertised a sexual interest in minor males. Detective Uhlir identified Gigatribe u ser “sugardaddylv” as a possible s uspect based on his online profile, 1 and r equ e s t e d access to his files. On April 14, 2010, Detective Uhlir obtained access and downloaded a number of videos a nd images depicting children engaged in sexual activities with adults. He then traced the Internet Protocol (“IP”) address 2 to a computer l o cated at 1 03 Ash S treet in Los Fresnos, Texas, and reported the matter to the Los Fresnos Police Department ( “LFPD”). Relying on that informati o n , D etective Gilbert R odriguez o f the LFPD applied for and received a warrant t o search the 103 Ash Street property for evidence of p o ssession and distribution of child pornography (“the state search warrant”). The warrant, which was issued on J uly 6, 2010, expired a fter three days. 3 O n J u l y 1 2, 2010, believing t he warrant to b e e xpired, Rodriguez and other s tate officers executed the expired search warrant and s eized computers,

1 The online p rof

ile f or “s ugard ad d ylv” read , at the tim e of the inves tigation: Single, White, D ad d y - typ e, Laid -back and eas y going, Funloving. Financially
s ecure. Living in Vegas but s oon to m ove. Look ing f or younger guys to k eep m e young and to share w ith, to m entor and to f eel

- - m ak e feel g ood

. When I move to s outhernm os t texas , only 15m in f rom gulf coas t, where the w eather is alw ays w arm and u can go nak ed mos t of the tim e, I w ill be look ing f or a d ad d ies boy to join m e, w ho w ill be w ell tak en care of

. Could this be you? L et m e k now .

2 “An [ IP] ad d res s is a unique 32- bit num eric ad d res s , w ritten as num erals sep arated by p eriod s , id entif

ying each s end er or receiver of inf orm ation traveling acros s the I nternet. An IP ad d res s has tw o p arts : the id entif ier of a p articular netw ork on the Internet ( say, the f irs t 24 bits ) and an id entif ier of the p articular d evic e ( w h i c h c a n b e a s erver or a w ork s tation)
w ithin that netw or k

. I n e s s e nce, an IP ad d res s id entif ies a s ingle com p uter

. . . . ” Whi te Buf f a l o V entures, LLC v . U

ni v . of Tex. a t A usti n , 420 F. 3d 366, 369 n. 6 (5th Cir. 2005)

.
3 The s earch w arrant exp res s ly provid ed that it exp ired w ithin three d ays , cons is tent w ith Texas law , w hich provid es that “[ t] he tim e allow ed for the execution of a s earch w arrant, exclus ive of the d ay of its is s uance and of the d ay of its execution, is : three w hole d ays , ” T E X

. C O DE C R I M

. P R OC

. AN N

. art. 18. 07( a) ( 2) (Wes t 2012)

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cameras, VHS tapes, photographs, a n d e lectronic storage m edia. Upon determining that the seized evidence furnished p robable c a use t o believe that Woerner was in possession of c hild pornography, the state offic e r s arrested Woerner and transported him to the LFPD. During t his s ame period, and specifically on May 14, 2010, Special Agent Barry Couch of the Buffalo Field Office of t he Federal Bureau of Investigation (“FBI”) was independently engaged i n a s i milar undercover operation on Gigatribe, and accessed and downloaded 8 videos a nd 170 images depicting child pornography from the same IP address, which he traced to the same p roperty. He communicated that information to FBI Special Agent Paul S parke, who applied for and received a warrant t o search the 103 Ash Street property for evidence of possession and distribution of child pornography (“the first federal search warrant”). On July 13, 2010, as Special Agent Sparke and his partner, Special Agent Melanie Bailey, were preparing to e xecute the search warrant, the LFPD informed them of the earlier search and arrest. 4 The FBI p roceeded with the search and seized film, videos, tapes, and magazines. The next day, Special A gents S p a r ke and Bailey questioned Woerner at the LFPD for approximately two hours. At the beginning of the interview, they orally advised him of h is Miranda rights and presented him with a w r i t t e n Miranda waiver form, w h i ch he signed. They then informed him that h e would be arrested on c hild pornography charges. During the interview, Woerner ad m i t t e d to having a sexual relationship w ith a minor ( “J.L.”) and to sharing

c h i l d p ornography over the Internet via his Gigatribe and Yahoo! e m a i l a c c o u n t s .

4 D etective Rod riguez and Sp ecial Agent Sp ark e gave d is crep ant tes tim ony about w hen the LFPD contacted the FBI: Rod riguez tes tif ied that he called Sp ark e d uring the af ternoon of July 12, w hereas Sp ark e tes tif ied that he w as not contacted until the m orning of July 13. The d is trict court cred ited Sp ark e’s account, and , af ter review ing the tes tim ony, w e conclud e that its find ing w as not clearly erroneous . 3 Case: 11-41380 Document: 00512152043 Page: 3 Date Filed: 02/22/2013No. 11-41380

On July 15, 2010, Special Agents Sparke and Bailey spoke with J.L. and his parents. J.L. t old t he agents that W oerner made sexual advances toward him a nd d i s p l a y ed child pornography to him while he stayed at Woerner’s residence during the summer of 2010. He a lso informed the agents that Woerner kept child pornography on a f lash drive and external hard drive which, the agents later discovered, had not been seized during the state or federal searches. On the basis of t hat information, as well as the information provided by Woerner, Special Agent Sparke applied f or and received a warrant to search the 103 Ash Street property for those items (“the second federal searc h w a rrant”). Agents e xecuted the warrant on July 3 0, 2010, and seized a Sony Memory Stick flash drive. Over the course of the investigation, S pecial A gent Sparke was informed by Woerner and others that Woerner used the following email accounts to access

c h i l d p o r n o gr a p h y : “f

a n t a s ti k a k t i o n@y ahoo.com” (t h e “f a n t a s t i k a k t i o n a c c o u n t” ) , “mwoerne@juno.com” (the “juno account”), and “mwoerne@hotmail.com” (the “hotmail account”). On the b a s i s of that information, Special A gent Sparke applied for and received a warrant to search the corporate offices of Microsoft, Yahoo!, and United Online for records associated with Woerner’s email a ccounts (“the third federal search w arrant”). On August 9 , 2010, Special Agent Sparke executed the warrant and obtained the record s , which revealed that Woerner sent, between January and July 2010, 65 emails from the fantastikaktion account that contained, in total, more than 90 videos and 1300 images of child pornography. On August 10, 2010, Woerner was charged in a four-count indictment with possession and distribution of child pornography. The indictment w as amended nine days lat e r t o c o r rect a typo. Counts One and T wo charged Woerner with possessing child pornography on April 14 and May 14, 2010 , respectively, in violation of 18 U.S.C. § 2 252A(a)(5)(B). Counts Three and F our charged Wo e r n e r

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with distributing child pornography on April 14 and May 14, 2010, respectively, in violation of 1 8 U.S.C. § § 2252(a)(2), 2252A(a)(2). A f ifth count, for distribution

o f c h ild p ornography through his e mail account between January 10 and July 1 2 , 2010, in violation of 18 U.S.C. §§ 2252(a)(2), 2252A(a)( 2 ) , was charged by superseding indictment on December 7, 2010. Prior t o t r i a l , Woerner moved to suppress evidence seized during the execution of the expired state s earch warrant, statements h e made to FBI agents during his custodial interrogation, and the e videntiary fruits of b oth encounters. After conducting a hearing, th e d i s t r i c t court granted, in p art, a nd denied, in
p a r t , W oerner’s m otion to suppress in a memorandum opinion and order (the “firs t s u p pression order”). The court ordered the suppression of physical evidence seized from Woerner’s home and statements h e made to the F B I on the grounds that t he physical evidence was s eized pursuant to, and his statements

were tainted b y, the unlawful July 1 2 search of his home. T he court did not suppress evidence derived from the FBI interview of J.L. and his family or the July 30 search of Woerner’s home, c oncluding that such evidence was not tainted by the u nlawful search. W o e rner later moved for clarification of the suppression order. Specifically, Woerner i nquired whether evidence seized pursuant to the third federal s earch warrant, including records r elating to his fantastikaktion

a c c o u nt, was suppressible as fruit of his suppressed confession. In a sec o n d memorandum and order (the “ second suppression order”), the court characterized Woerner’s motion for clarification as a second motion to s uppress, and ruled t hat suppression w as not warranted because t he evidence at i ssue fell within the good faith exception to the exclusionary rule. Af t er a t wo-day jury trial, Woerner was convicted on all five c ou n t s . H e

was sentenced t o 120 months’ imprisonment for each of the possession counts and 2 40 months’ imprisonment for each of the distribution c ounts, to be served

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consecutively, for a total of 960 months’ imprisonment, the s t atutory maximum. He timely appealed. DISCUSSION Woerner c hallenges his conviction o n three grounds. First, he argues that emails from his fantastikaktion account should have b een suppressed because the warrant authorizing their seizure was supported by eviden c e o b tained th r o u g h an unlawful search. Second, Woerner contends that the evidence against him was insu f f i c i ent because no witness testified that he was at his computer when the child p o r n ography was downloaded, possessed o r di s trib ut e d

. Thir d , Wo e rn e r s ub m it s th at th e i n dic t m e nt and h is sentence were multiplicitous because his conduct amounted to no more than one c o nti nu o u s cri m e . I. Suppression Woerner challenges the district court’s denial of his motion to suppress inculpatory emails f

r o m his f

antastikaktion account. The district c o urt ruled that such e vidence fell within the good faith exception to the exclusionary rule. We review the district c ourt’s factual findings for clear e rror a nd i ts c onclusions of law de n ovo , United States v. Payne , 3 41 F.3d 393, 399 (5th Cir. 2003), and will “uphold the district court’s ruling to deny the suppression motion if there is
any reasonable view of the e vidence to support it,” United States v. Michelletti , 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (internal quotation marks omitted). T h e e vi d e n c e at i s s u e w a s ob t a i n e d p u r s u a n t t o a s e a r c h w a rr a nt , s o w e b e gi n b y e v a l u a t i n g w h e th e r th e go o d f a i th e x c e p t i o n t o th e e x c l u s i o n a ry r u l e

a p p l i e s . U

n i t e d S t a t e s v . P

e n a - Ro d r i

g u ez , 1 1 0 F

. 3 d 1120 , 1 1 2 9 ( 5 th C i r . 1 9 9 7)

. U n d e r the go o d f

a i th e x c e p t i o n , e vi d e n c e ob t a i n e d du ri n g th e e x e c u t i o n o f a

w arr a n t l a t e r d e t e r m i n e d t o b e d e f i c i e nt i s n o n e th e l e s s a d m i s s ib l e i f th e e x e c u t i n g

o f f i c e r ’s reli a n c e o n th e w a rr a n t w a s obj e c t iv e l y r e a s o n ab l e a n d m a d e i n go o d f a i th

. P a y n e , 3 4 1 F

. 3 d a t 3 9 9

– 4 0 0 (c i t i n g U nited S t a t e s v . L e o n , 4 6 8 U

. S

. 8 9 7 , 9 2 1

–2 5 ( 1 9 8 4) )

. W e h av e i d e n t ified four s i t u a t i o n s i n wh i c h th e go o d f a ith

6 Case: 11-41380 Document: 00512152043 Page: 6 Date Filed: 02/22/2013No. 11-41380

e x c e p t i o n d o e s n o t a p p l y : ( 1 ) w h e n th e i s s u i n g magistrate w a s m i s l e d b y i n f o r m a t i o n i n a n a f

f i d avit th a t th e a f

f i a n t k n e w o r r e a s o n ab ly s h o ul d h av e k n o w n

w a s f al s e ; ( 2 ) w h e n th e i s s u i n g m a gi s t r a t e w h o l l y ab a n d o n e d h i s j u di c i al r o l e ; ( 3 )

w h e n th e w a rr a n t a f

f i d avi t i s s o l a c ki n g i n i n di c i a o f p r ob ab l e c a u s e a s t o r e n d e r

o f f i c i a l b e l i e f i n i t s e xi s t e n c e u n r e a s o n ab l e ; a n d ( 4) w h e n th e w a rr a n t i s s o f a c i a l l y deficient i n f

a i li n g t o p a rt i c u l a ri z e th e p l a c e t o b e s e a r c h e d o r th e th i n g s t o be

s e i z e dth a te x e c u t i n g

o f f i c e r s c a n n o tr e a s o n ab l yp r e s u m ei tt ob e v a l i d

. I d

. As the district court pointed out, this c ase calls upon u s t o a nswer whether the good faith exception applies in a fifth situation: when the m a g istrate’s probable cause finding is based o n evidence that was the product of an illegal search or seizure. Statements made b y Woerner d u ring the custodial interrogation, which were l ater supp r e ssed as fruits of the unlawful July 12 search, appear in paragraphs 30 and 31 of the warrant affidavit supporting the third federal sear c h warrant. The district c ourt f ound, and the government concedes, that such statements were the only evidence in the w arrant affidavit specifically linking W oerner’s possession of child pornography to the fantastikaktion account. We decline to announce a c a t e g orical rule governing this situation, following Leon ’s guidance that “suppression of evidence obtained p u rsuant to a warrant should be ordered only on a c a se-by-case b asis and only in those unusual cases in which exclusion will further t h e purposes of the exclusionary rule.” Leon , 468 U.S. at 918. We note that the purpose of the e xclu s i o n a ry rule—deterring future Fourth Amendmen t vi o l a ti o n s—would be served, in some cases, by suppressing e vidence seized p ursuant t o a warrant s upported by evidence obtained through an unlawful search. See Davis v. United States , 131 S. Ct. 2419, 2426 (2011) (“The rule’s sole purpose, we have repeatedly held, is to deter future F o u r t h Amendment violations.”). For e xample, if the officer applying for the warrant knew o r had reason to k now that the information was
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tainted and included it anyway without full disclosure and explanation, then suppressing the e vi d e n c e s e ized pursuant to that warrant “pay[s] its way by deterring official lawlessness.” Illinois v. Gates , 462 U.S. 213, 258 (1983) (White, J., c oncurring); s ee also United States v . McGough , 4 12 F.3d 1 2 3 2 , 1240 (11th Cir. 2 0 0 5 ) ; U

nited States v. McClain , 444 F.3d 556, 565–66 (6th Cir. 2005); United States v. Re i l l y , 76 F.3d 1271, 1280 (2d Cir. 1996); United States v. Wanless , 882 F.2d 1459, 1466 (9th Cir. 1989); United States v. White , 8 90 F.2d 1413, 1 417–19 ( 8th Cir. 1989); United States v. Thornton , 746 F.2d 39, 49 (D.C. Cir. 1 984). Suppression likewise might be justified if the officer responsible for the illegal predicate search provided information—knowing it to b e tainted, but concealing that fact—to a second officer for use in a successive search warrant application. The facts before u s, however, present a far different case. As the district court found, [T]he law enforcement officers who carried out each investigation d id not become aware of the existence of the other i nvest i g a t i o n until after Woerner’s home was searched and he was arrested o n July 12, 2010. Nothing in the r ecord suggests that Gilbert R o dri gu e z , the Los Fresnos Police Departme n t o f f i c e r w h o c o n du c t e d the original search, i ntentionally set out to launder t h e fruits of t h e illegal search conducted on July 12, 2010, by passing the illegallyobtained e vidence t o the unsuspecting F BI agents who prepared t h e application of the August 6 w arrant. Nor do the facts of this case, as this Court f

i nds them, give r ise to t he i n ference of intentional or reckless misconduct on R o d r i g u e z’s part. After hearing all of t h e testimony, the C ourt finds that the FBI t o o k c o ntrol of t h e investigation o n July 13, 2010, for reasons u n r e l a t ed to the i llegal search. This Court therefore finds that the police misconduct leading to t he inclusion of Woerner’s st atements in paragraphs 3 0 and 31 of the August 6 warrant application was at most the result of negligence of one or more law enforcement officers. Moreover, Special Agent Sparke, t he affiant for the third federa l s e arch warrant, could not h ave known t hat statements m ade by Woerner in the FBI intervi e w

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would later be suppressed. The FBI searched W oerner’s h ome pursuant to a valid w arrant, and Woerner signed a valid Miranda waiver b efore making inculpatory statements d uring t he FBI interview. Under t hese facts, i nvolving state and federal investigations that w ere parallels, s uppression is not justified. C f

. U n i t ed States v. Pope , 467 F.3d 912, 9 15–20 (5th Cir. 2006) (applying g o o d faith exception where, a s h ere, second search w arrant was based on information discovered during an initial search later determined to be unlawful). Having concluded that the good faith e xception app l i e s , w e end our suppression analysis at t his s tage. United S tates v. Cavazos , 288 F

. 3d 706, 709 (5th Cir. 2002). II. Sufficiency of the Evidence Woerner argues that the evidence adduced at trial is insufficient to supp o r t h i s convictions because no witness testified that Woerner was at his

c o m p u t e r w h e n th e c h il d p o r n o gr a phy was downloaded, possessed or distribu t e d

. “A challenge to the sufficiency o f e v i d e nce following a proper motion for acquittal is reviewed b y this c ourt de n ovo .” United States v. Winkler , 639 F.3d 692, 6 96 (5th Cir. 2011). Because Woerner raised his sufficiency challenge at the close of evidence, the standard of review is “whether a rational trier of fact could have f ound that t he evidence established the essential elements of the offense beyond a reasonable d oubt,” United States v. Moreland , 665 F

. 3 d 1 37, 148–49 (5th C ir. 2011). In d etermi n i n g w h e ther this standard is met, we “view the evidence in the light m ost favorable t o the verdict and drawing all reasonable inferences from the evidence to support the v erdict.” United States v. Percel , 553 F.3d 903, 910 (5th Cir. 2008). A. Counts One and Two To p r o v e i t s possession counts against Woerner, t he government was required to show beyond a reasonable doubt that h e (1) k n owingly (2) p ossessed

ma t e rial containing an image of child pornography (3) that had been transported

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in interstat e o r f

o r e ign commerce by any means, including by computer. 18 U.S.C. § 2252A(a)(5)(B); Moreland , 665 F.3d at 149. At the close of evidence, Woerner moved f or a directed verdict on the basis that the government “failed t o prove each and every element of its necessary

e l e m ents in regard to counts one through five.” On appeal, Woerner r est r i c t s his sufficiency ch a l l e n ge t o t he “knowing” and “possession” elements. Specifically, Woerner argues that the government cannot establish possession, much less knowing possession, because no witness testifie d t hat Woerner was at h is computer when the child porn o graphy was downloaded, possessed or distributed. The g overnment may p r o ve possession by showing that the defendant actually or c onstructively possessed m aterial containing child
pornogr a p h y. M

oreland , 665 F.3d at 149. “Actual possession means the defendant knowingly has direct physical control over a thing at a given time.” Id. “Constructive possession is the ownership, dominion or control over an illegal item itself or dominion or control o ver the premises in w hich the item is found.” Id. Where, a s h ere, t here is no eviden c e that the defendant had direct physical control over the images at issue, we proceed to a constructive possession analysis. See id. at 150; United States v . T e r r e l l , 700 F.3d 755, 765 (5th Cir. 2012). Our “common sense, f act-specific approach” to determine constructive possession often hi n g es o n whether the defendant had exclusive or shared control over the place in which the child pornography w as found. Moreland , 665 F.3d at 1 50–52. “Dominion, control, and kno w l e d g e , i n most cases, may be inferred if a d e fendant had exclusive possession of the place in which the contraband is found, but this inference cannot be s u s t a i n e d if the defendant shared joint occupancy of t he place.” I d. If the place where the c h i l d pornography is foun d is shared by multiple users, the g overnment must introduce some evidence, in addition to the e vidence of s hared use, to support a
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reasonable jury inference that the defendant knew that the i m ages existed and had the knowledge and ability to access and exercise dominion and control o ver them. Id. at 150–51. Woerner contends that neither of the places w here the child p ornography

w a s found—his fantastikaktion account a nd Gigatribe shared f older—were under his exclusive use and control. As evidence of shared usage o f his computer and e m a il account, W oerner s ubmits that both J.L., the minor who stayed o ver at his house, and Jeremiah W alker, his former roommate and the creator of the fantastikaktion account, both had access to Woerner’s computer and knew the login and password to his fantastikaktion account. The IP address l inking the fantastikaktion and Gigatribe accounts to Woerner, h e continues, could have belonged to any person who accessed his unsecured wireless internet. Assuming, arguendo , that neither the computer nor the email account was

u n d e r Woerner’s exclusive u se a nd control, w e nonetheless reject Woern e r ’ s sufficiency challenge because the government i ntroduced considerable evidence from w hich t he jury c ould have reasonably inferred t hat Woerner knew that the images existed and had t h e k nowledge a nd ability to access and exercise dominion and control over them:

• The I P address from which the child pornography was downloaded and distributed via the fantastikaktion and Gigatribe accounts was registered to the Ash street property where Woerner resided. Woerner’s neighbor testified that Woerner l ived a lone, an d Woerne r ’ s m ailman testified that he did not deliver mail to any other person at that address during the relevant time period.

• The profile picture a s sociated with t h e Gigatribe account “sugardaddylv” from which the child pornography was distributed was of Woerner, an d t h e profile contained other identifying information, such as Woerner’s relative age, ethnicity, background, and interests.

• The fantastikaktion account, w hich contained c h ild p ornography and from which child pornography was distributed, was registered

11 Case: 11-41380 Document: 00512152043 Page: 11 Date Filed: 02/22/2013No. 11-41380 in W o e r n e r ’s name. Although the account initially belonged to Jeremiah W a lker, his former roommate, it was left to Woerner when Walker moved out in 2006, and Woerner subsequently changed the password so others would not h ave access. Emails sent from that account often i ncluded identifying p hotographs and information about his daily life, and w ere regularly signed “Mark.” Many emails sent between January and July 2010 contained child pornography and commentary from Woerner on the substance a nd quality of the images and videos, indicating t h a t W o erner was aware of their illegal content and knowingly distributed them to others.

• Mor e t h a n 90 vi deos and 1300 images of child pornography were found i n Woerner’s f

antastikaktion account a lone, and t h eir content w a s evident from their file n ames, undercutting any potential argument that they were downloaded by mistake. See United States v. Payne , 3 41 F.3d at 4 0 4 ( h o lding that “the number of images in Payne’s possession, taken together with the suggestive titles of the photographs,” among other evidence, “support [ e d ] t he jury’s inference that Payne knew he was receiving child pornography”).

• J.L. testified that Woerner gave him a flash drive containing images of child pornography. According to J.L., Woerner told him that he should share the child pornography with other cad e ts at flight school, b ut ac knowledged t hey would both get in trouble i f he did, evidence t hat Woerner possessed the images and was aware of their illegal content. Reviewing th i s e v i d e n ce in a light most favorable to the jury’s verdict, we conclude that it is more t han suffici e n t t o s u pport Woerner’s c onvictions for possession of child pornogr a p hy . W e h av e a f f i r m e d c h i l d p o r n o gr aphy possession convictions ag a i n st sufficiency challenges where t he e vidence of knowing possession was less comprehensive t han it i s here. See, e.g. , Terrell , 700 F.3d at 765; Winkler , 639 F.3d at 700; United States v. G of f , 1 5 5 F. App’x 773, 775–76 (5th Cir. 2005) ( p e r c u r iam); United States v . Rios , 477 F. App’x 209, 210 (5th Cir. 2012) (per curiam). Th e p r incipal deficiency i n the government’s case to which Woerner objects—that no witness put him at the computer when the child pornography

was downloaded, possessed or distributed—lacks the significance he attributes

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to it. More o ften than not the go v ernment lacks such evidence b ecause child pornography i s not something people tend to d o wnload, possess, or distribute in the company o f others. E ven if the lack o f w i t n e s s es would allow W oerner to craft a plausible n arrative for how the child pornography e nded u p in his email and file-sharing accou n t s , t h at would not be enough to upset the jury verdict against him. Winkler , 639 F.3d at 7 00 (“At most, Winkler posited plausible alternative e x p lanations for how the illicit por n o g r a p h y came to b e on his computer. But a j ury is n ot required to accept any alterna t i v e explanation. Rather, taking into a c count the overwhelming evidence the government presented of Winkler’s involvement w ith child pornography, a n d that he purchased access to child pornography websites a n d d o wnloaded child pornography, the evidence p resented b y t he government was sufficient for the jury to reject the evidence pr e sented by the defense, and to credit the prosecution’s case.”) (citation omitted); see also Mo r eland , 665 F.3d a t 155–60 (Jolly, J ., dissenting) (emphasizing that it i s the province of the jury t o r e pudiate a defendant’s account, however persuasive it may seem on appeal). B. Counts Three, Four, and Five To prove its distributio n counts against Woerner, t he government was

r equired to establish beyond a reasonable doubt that he (1) k nowingl y ( 2 ) distributed a visual depiction of a minor engaging in sexually e xplicit c onduct (3) which had either t r a v e l e d in interstate commerce or b een produced using

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materials that had traveled in int e r s tate commerce. 5 18 U.S.C. § 2252(a)(2); United States v. Chiaradio , 684 F.3d 265, 281 (1st Cir. 2012). Woerner’s challenge to t he distribution counts is t he same a s his challenge to the p ossession counts: namely, that t he e vidence is insufficient t o prove b e y o nd a reasonable doubt that he distributed c hild pornography because “no witnesses put Woerner in front of his computer” whe n the images were distributed. He does not contest that child pornography was distribut e d, only that he distributed it. Reviewing the evidence in a light most favorable to the jury’s verdict, we conclude that there was sufficient evidence linking Woerner t o the e mails and Gigatribe account. The Gigatribe profile f or u ser “sugardaddylv” contained a picture of Woerner as well as other identifying information, such as Woerner’s relative age, ethnicity, b ackground, a nd interests. T he fant a s t i k a ktion email account was registered i n Woerner’s name, and t here is no evidence at others had access t o it when t h e emails were sent. M a n y such e mails included photographs of Woerner and information about his d a i l y l i fe, and were signed “Mark.” It was reasonable for the jury to infer from such evidence that Woerner, not a n unidentified third party, was responsible for distributing the child pornography from his email and Gigatribe accounts. III. Multiplicity At the close of e vi dence, Woerner’s counsel moved to dismiss one of Counts One and Two and o ne o f Counts Three and Four o n t h e b asis that the

5 The ind ictm ent charges Woerner, in Counts Three, Four, and Five, each tim e, w ith violating tw o s ep arate statutes p ros cri b i n g t h e d is tribution of child p ornograp hy: 18 U

. S. C

. § 2252 ( a) ( 2) , which p ros cribes the k now ing d is tribution of any vis ual d ep iction of a m inor engaging in s exually exp licit cond uct, and 18 U

. S. C. § 2252A( a) ( 2) , w hich p r o s c r i b es the k now ing d is tribution of any child p ornograp hy. Woerner did not rais e a d up licity challenge bef ore the d is trict court and d oes not rais e one o n a p p e a l , h o w ever. See U ni t ed Sta tes v . Rea ga n , 596 F. 3d 251, 253 ( 5th Cir. 2010) ( “Reagan d id not rais e a d up licity challenge bef ore the d is trict court and d oes not rais e one on ap p eal. Accord ingly, w e d o not cons id er w hether the s entence w as d up licitous

. ”) 14 Case: 11-41380 Document: 00512152043 Page: 14 Date Filed: 02/22/2013No. 11-41380

government failed to show two separate acts o f possession and distribution. The

c o u r t denied both motions. Woerner’s counsel did not, at that time, move t o dismiss Count Five, which charges distribution o f child pornography from the fantastikaktion account between January and July 2010. On appeal, Woerner continues to press his multiplicity challenge, but appears to take the alternative position that only one total count of conviction should stand. He does not specify which one. We review trial c ourt rulings on multiplicity challenges de novo . United States v. Kimbrough , 69 F.3d 723, 728–29 (5th Cir. 1995). Where a d e f endant raises a multiplicity challenge for the first time on appeal, we review f or plain

error. United States v. Spurlin , 6 64 F.3d 954, 965 (5th C i r . 2011). Accordingly, Woerner’s mulitiplicity challenge with r espect to C ounts One through Four is reviewed de novo , and his challenge to Count Five is reviewed for plain error. An i n dictment is multiplicitous if it charges a single o ffense in separate counts. See U

nited States v. Ogba , 526 F.3d 214, 232–33 (5th Cir. 2 0 08) (“A challenge to multiplicity invokes the Double Jeopardy Clause, w hich protects against multiple punishments for the same offense , w here Congress has not authorized cumulative punishment for one offense.”) (internal q uotation marks and citation omitted). T here are at least two species of multiplicity challenges, both of which are implicated b y this appeal. The first type arises when a defendant is charged with vi o l a t i n g two different statutes, o ne of which is arguably t he lesser included offense of t he other. This i s the speci e s o f multiplicity challenge addressed in Blockburger v. United States , 284 U.S. 299 (1932) , a nd its progeny. Unless each offense requires proof of an element that the other d oes n ot, a defendant may not be charged with both. United S tates v. Nguyen , 28 F.3d 477, 485 ( 5th Cir. 1994) (citing Blockburger , 284 U.S. at 303–05). The s econd type of multiplicity challenge arises when charge s for multiple violations of the same statute a r e p r e d icated on a rguably t h e same
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criminal conduct. I n that c ircumstance, the court inquires “whether separate and distinct prohib i t e d a cts, made punishable by law, have b een committed.” United States v. Planck , 493 F.3d 501, 503 (5th Cir. 2007). In his first m ultiplicity challenge, Woerner argues that possession of child pornography is a lesser-included offense of distribution of child p ornogr a p hy, comparing the two crimes to simple possession o f a controlled substance and possession with i ntent t o distribute. His comparison is inapt. Simple possession of a controlled substance does not contain an element that possession with intent t o d i stribute lacks, and thus, under Blockburger , a defendant may no t b e convicted of both offenses if t hey are p redicated on the same act. United States

v. Finley , 477 F.3d 2 50, 256–57 (5th Cir. 2007). The s a m e is not true of possession and d istribution of child pornography. A defendant need not possess child p ornography to distribute it, Chiaradio , 6 84 F.3d at 2 80 (“One can envision circumstances in which an individual could be guilty of distribution without e ver obtaining possession of (or even coming into contact with) the contraband. For example, the broker of a deal between a person who has c h ild pornography and

a person who wishes to p rocure it may be guilty of distribution but n ot guilty of possession.”), a nd, vice versa , a defendant need n ot distribute child p ornography to possess it, United States v. Goluba , 672 F.3d 304, 307 (5th Cir. 2012) (“[T]he forensic analysis of [the defendant]’s c o mputers ‘revealed that [he] did n ot distribute his collection of child p orno g r a p h y . ’ ” )

. For that reason, we join the First and Seventh Circuits in holding that possession of child pornography is not the lesser-included o ffense of distribution of child p o r n o gr a p h y , s e e U n i t e d S t a t e s

v . C h i a ra d i o , 6 8 4 F

. 3 d 2 6 5 , 2 8 0 ( 5 th C i r . 2 0 1 2 ) ; U n i t e d S t a t es v . F

a u lds , 6 1 2 F

. 3 d 5 6 6 , 5 6 9

– 7 1 ( 7 th C i r . 2 0 1 0) , a n d c o rr e s p o n di n gly r e j e c t Wo e r n e r ’ s c l a i m th a t C o u nt s O n e a n d T w o a r e l e s s e r i n c l u d e d o f f e n s e s o f C o u nt s T h r e e , F o u r , a n d Fiv e . In his second m ultiplicity challenge, Woerner argues that he did not commit t wo s eparate acts of p ossession and three separate acts of distribution

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of child pornography. T o reiterate, t he test is “ whether sepa r ate and distinct prohibited acts, made punishable b y law, h a v e b een committed.” Planck , 493 F.3d a t 503. That test has two st e p s . First, w e look to t he statute charged to ascertain the “allowable unit of pros e c u t i o n , ” or the actus reus o f the crime. United States v. Reedy , 304 F.3d 358, 365 (5th Cir. 2002). “Congress’s intent is
para m o u n t o n this point: the legislature may castigate a p articular act by exposing the a ctor to sever al prosecutions and punishments, o r it may specify that the act should only be subject to a singl e unit o f prosecution.” Chiaradio , 684 F.3d at 272. Second, we revi e w t h e evidence to see how many distinct criminal acts the defendant committed. U n i t e d States v. Buchanan , 485 F.3d 274, 282 (5th Cir. 2007). A. Multiplicity Challenge to Possession Counts Th e i n dictment c harges Woerner, in Counts One and Two, with “knowingly possess[ing] material that contained images of child pornography,” in violation of 18 U.S.C. § 2 252A(a)(5)(B). T he allowable unit of prosecution for § 2252A(a)(5)(B) is each “material,” or medium, c ontaini ng an image of child pornography. Planck , 493 F.3d at 504. To c harge multiple possession c ounts, the government must h a ve evidence that a defendant (1) “has images stored in separate materials,” and (2) “the prohibited images were obtained through the result of different transactions.” Id. Woerner argues that t he two possession counts are predicated on the same conduct. The government’s response—that C o u n ts One and Two are not multiplicitous because Woerner possessed child pornogra p hy on different days—overlooks that the pertinent unit o f prosecution is each material, not each day. See id. ; see also United States v. Ehle , 640 F.3d 6 8 9 , 697 ( 6th Cir. 2011) (“Carried to i ts logical extreme, the idea would permit possession of contraband for ten days (240 hours) to be charged a s ten (or maybe 240) separate c ounts of

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possession. The policy underlying the Double Jeopardy Clause clearly d oes not permit such parsing.”). Under the governing standard, whe t h e r C ounts One and Two are multiplicitous hinges upon whether the evidence adduced at trial w as sufficient to support the j ury’s v e r d ict t hat (1) Woerner possessed two or more separate materials, and (2) the images contained therein were obtained through different transactions. The latter is s traightforward. T he jury was entitled to infer from the large number of images and videos d o wnloaded from W oerner’s Gigatribe shar e d f o lder on April 14 a nd May 14, 2010, and emailed from Woerner’s fantastikaktion account between January 10 and July 2, 2010, that the images in h is possession were obtained through different transactions. Planck , 493 F.3d at 506 (Wiener, J., c oncurring) (“Given the overwhelming n u mber of images and movies s tored on the computers and diskettes in Planck’s house, it would exceed credulity t o concl u d e t hat Planck acquired, or could have acquired, all the images and movies at t h e very same time.”); United States v. Hi n k eldey , 626 F.3d 1010, 1014 (10th Cir. 2010). Slightly more difficult is the question whether the evidence supports the j u r y ’s verdict that Woerner possessed two “ materials” containing chi l d pornography. We have interpreted the term “ m aterial,” which is n ot defined in 18 U.S.C. § 2252A(a)(5)(B), to denote a m e dium c ontaining i m ages of child pornography. See Planck , 493 F.3d at 503. T his c hild pornography prosecution is different than most because the physical media purportedly containing child pornography

—t h e computer and t he flash d rive—were never entered into evidence. The c o m p u t e r was suppressed a s a fruit of the unlawful July 12 search, and the f

l ash drive, which was seized during the lawful July 30 search, has not been shown by the parties to have been entered into evidence. However, even though the government did not enter into evidence Woerner’s home computer, the jury had a mple evidence from w hich to infer that

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the computer was a “material that contained images o f child pornography” that Woerner knowingly possessed. It is rea s o n a b l e to i nfer from the extensive collection of child pornography f o u n d o n Wo e r n e r ’ s f

a n t a s t i k a k t i o n a n d G i g a t rib e accounts that h e stored at least s ome of his files on h is home computer:

w i t n e s s e s testified h e possessed and used this computer, a nd the IP address linked to the fantastikaktion and Gigatribe accounts was registered to the Ash st r e e t property where this computer was located and where W oerner alone resided. Similarly, while the government apparently did not enter i n to evidence the flash drive, the jury could have reasonably inferred that it was a “material that contained i mages of child pornography” that Woerner knowingly possessed, in light o f J.L.’s testimon y t hat Woerner p o ssessed it a nd it contained child pornography, Woerner’s admission t h a t bringing it to flight school might get them both in trouble, and the considerable evidence t hat Woerner knowingly possessed and distributed child pornography on a large scale. Having f ound that the e vidence adduced at trial was sufficient to support the jury’s v erdict that Woerner possessed t wo or m o r e s eparate materials and the images contained therein were obtained through s eparate transactions, we conclude that Counts One and Two are not multiplicitous. B. Multiplicity Challenge to Distribution Counts The indictment charges Woerner, i n Counts Three, Four, and Five, with “knowingly distribut[ing] a ny visual depiction

. . . involv[ing] the use of a minor engaged in sexually explicit conduct,” in violation of 18 U.S.C. § 2 252(a)(2). The unit of prosecution for § 2252(a)(2) is each t ransaction i n w hich o ne or more depictions of a minor engaged in sexually e xplicit c o nduct are distributed. See United States v. Pires , 6 42 F.3d 1, 16 (1st Cir. 2011); United States v. Polouizzi , 564 F .3 d 142, 158 ( 2 d Cir. 2009); see also Reedy , 3 04 F.3d at 365–68 (holding that a person c a n n ot be c harged more than o nce for images received or distributed in the same transaction).

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Under t hat standard, Counts Three, Four, and Five are not multiplicitous because they involve three separate transactions in which m u l t i p l e visual depictions were distributed: (1) the April 14, 2010 transaction i n which D e t e c t ive Uhlir downloaded approximately 11 videos and images from Woerner’s shared folder o n G igatribe, (2) t he May 14, 2010 transa c tion i n which Special Agent Couch d o wnloaded 8 videos and 170 images from the same account, and (3) the 65 emails sent b e t ween January 10 and July 2, 2010 from Woerner’s fantastikaktion a c c o u nt containing, i n total, more than 90 videos and 1300 i m a g e s o f c h i l d p o r n o gr a p h y . Se e Pi re s , 6 4 2 F

. 3 d a t 1 6 ; P o lo u iz z i , 5 6 4 F

. 3 d a t 1 5 8

. CONCLUSION For the foregoing reasons, we AFFIRM.

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