UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4867

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FREDERICK MASON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Louise W. Flanagan, 

District Judge. (5:11-cr-00168-FL-1)

Submitted: June 5, 2013 Decided: July 15, 2013

Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Raleigh, North 

Carolina; James A. Martin, Assistant Federal Public Defender, 

OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, North 

Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, 

Assistant United States Attorneys, OFFICE OF THE UNITED STATES 

ATTORNEY, Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

This appeal presents a challenge to a jury verdict finding 

defendant, Frederick Mason, guilty on fourteen counts of 

transportation, receipt, and possession of child pornography. 

Mason was sentenced to concurrent terms of 480 and 240 months. 

For the reasons stated below, we reject Mason’s contentions and 

affirm his convictions and sentence.

I.

In 2010, Detective McLaughlin, a New Hampshire undercover 

investigator, initiated a dialogue with Mason via an online chat 

service. After an initial conversation, Mason transmitted 

several pornographic files to McLaughlin. McLaughlin traced the 

source of the files to Mason’s residence in North Carolina. He 

then transferred the case to the North Carolina police, who 

obtained a warrant to search Mason’s home.

Mason was present at his residence when the warrant was 

executed. After voluntarily agreeing to speak with the officers 

conducting the search, Mason admitted to downloading, storing, 

and transmitting child pornography files. An extensive search of 

Mason’s computer and the various storage devices located in 

Mason’s home revealed approximately 10,000 child pornography 

files.
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The government obtained an indictment charging Mason with 

the transportation (Counts 1-3), receipt (Counts 4-13), and 

possession (Count 14) of child pornography in violation of 18 

U.S.C § 2252. After a jury verdict of guilty on all 14 counts, 

Mason was sentenced to concurrent terms of 480 months for Counts 

1-13 and 240 months for Count 14. This appeal followed.

II.

Two of the challenges raised by Mason arise from

typographical errors present in the indictment. Both of these 

challenges are properly analyzed under variance doctrine. For 

the following reasons, both are meritless.

A.

Mason’s primary variance argument is premised on an error 

contained in the name of a computer file listed as evidence 

under Count One. The file at issue is listed in the indictment 

under the name “Chandler.CIMP1989.AVI;” the government’s proof 

at trial, however, indicated that the correct file name for this 

item is actually “Chandler.CIMG1989.AVI.” 

Mason contends that the divergence between the indictment 

and the government’s proof generated by this error constitutes a 

“fatal variance.” A fatal variance occurs “when the indictment 

is altered to change the elements of the offense charged, such 

that the defendant is actually convicted of a crime other than 
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that charged in the indictment.” United States v. Allmendinger, 

706 F.3d 330, 339 (4th Cir. 2013) (internal quotation marks 

omitted). 

Not all variances, however, are fatal. “When the 

government’s proof diverges to some degree from the indictment 

but does not change the crime charged in the indictment, a mere 

variance occurs.” Id. “A mere variance does not violate a 

defendant's constitutional rights unless it prejudices the 

defendant either by surprising him at trial and hindering the 

preparation of his defense, or by exposing him to the danger of 

a second prosecution for the same offense.” United States v. 

Randall, 171 F.3d 195, 203 (4th Cir. 1999).

The divergence between the proof and indictment in this 

case does not warrant reversal of Mason’s convictions. The 

variance was non-fatal because the proof offered at trial by the 

government did not alter the crime charged in the indictment. 

Furthermore, the variance did not prejudice Mason in either of 

the respects identified by Randall. Apart from Mason’s 

conclusory assertions, there is no evidence that the error 

surprised him at trial or hindered the preparation of his 

defense in any way. 

Furthermore, the error does not expose Mason to the threat 

of a second prosecution for the same offense. The government 

openly admitted the existence of the typographical error at 
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trial and supplied the proper file name in testimony. 

Consequently, “the record depicts the offenses in such unique 

detail that [Mason] is protected from subsequent prosecutions 

for the same crimes.” United States v. Quicksey, 525 F.2d 337, 

341 (4th Cir. 1975).

B.

Mason’s second variance argument pertains to the 

indictment’s specification of an incorrect date in Count Ten, 

which charged Mason with receipt of child pornography on 

December 7, 2010. Testimony by a government witness established 

that the actual date on which this offense allegedly occurred 

was December 7, 2009. Mason was in custody on the date specified 

by the indictment; accordingly, he now argues that he could not 

possibly have received illegal materials on that date. 

Although Mason characterizes this issue as one of 

insufficiency of the evidence, variance doctrine instead 

provides the appropriate framework for analysis. Mason does not 

contend that a conviction for receipt of child pornography on 

December 7, 2009 (the date alleged at trial) would be factually 

unsupportable; to the contrary, he merely argues that the 

government’s evidence fails to establish that he received 

prohibited materials on the (incorrect) date specified in the 

indictment. Thus, Mason’s objection is fundamentally grounded in 
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the divergence between the indictment and the proof presented at 

trial.

A fatal variance claim in this instance fails for reasons 

similar to those identified above. First, under Allmendinger, 

706 F.3d at 339, the variance here is non-fatal because it does 

not alter the elements of the crime charged in the indictment. 

“Where a particular date is not a substantive element of the 

crime charged, strict chronological specificity or accuracy is 

not required.” United States v. Kimberlin, 18 F.3d 1156, 1159 

(4th Cir. 1994) (internal quotation marks omitted).

Second, Mason’s claim also fails under the prejudice 

standard articulated in Randall, 171 F.3d at 203. Mason does 

not allege that the indictment’s specification of an incorrect 

date caused unfair surprise or improperly hampered the 

preparation of his defense; indeed, it appears that the error 

was not even recognized until this appeal. See United States v. 

Barsanti, 943 F.2d 428, 438-39 (4th Cir. 1991) (finding no 

prejudice and thus no fatal variance where government’s proof 

indicated that crime occurred on a date different than that 

listed in the indictment). Furthermore, under Quicksey, 525 F.2d 

at 341, the fact that the government identified the correct date 

at trial effectively precludes any possibility of a second 

prosecution for the same offense. We therefore reject Mason’s 
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assertion that the government committed a fatal variance at 

trial.

III.

Mason’s second contention is that Counts 4-13 and Count 14 

of the indictment were multiplicitous. This objection to the 

indictment could and should have been raised before trial or, at 

the latest, during the course of the trial. It therefore comes 

before us on the well-recognized plain error standard, set forth 

in United States v. Olano, 507 U.S. 725, 732 (1993).

Multiplicity “is the charging of a single offense in 

several counts. The signal danger in multiplicitous indictments 

is that the defendant may be given multiple sentences for the 

same offense.” United States v. Burns, 990 F.2d 1426, 1438 (4th 

Cir. 1993) (internal quotation marks and citations omitted). The 

prohibition on multiplicity is not violated, however, when 

multiple convictions are predicated on multiple discrete acts. 

United States v. Benoit, 713 F.3d 1, 16 (10th Cir. 2013).

Counts 4-13 of the indictment charge Mason with receipt of 

child pornography; Count 14 charges him with possession of child 

pornography. Although each receipt charge identifies as a 

predicate a particular pornographic file, the possession charge 

includes merely a general reference to “computer hard drives and 

computer media containing digital and computer images.” As a 
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result of the indictment’s failure to identify a distinct file 

as the basis of the possession charge, Mason contends that the 

jury theoretically could have voted to convict for both 

possession and receipt on the basis of identical pornographic 

material. Insofar as possession in this context may be 

considered a lesser-included offense of receipt, Mason argues 

that conviction for the two offenses on the basis of the same 

acts would violate the prohibition on multiplicity.*

Here, “the prosecutor's statements and the evidence at 

trial” indicate that the possession and receipt charges were 

predicated on distinct conduct. United States v. Halliday, 672 

F.3d 462, 471 (7th Cir. 2012). As noted, Counts 4-13 

collectively identify ten specific files that form the basis of 

the receipt allegations. At trial, however, the government 

presented evidence that Mason possessed approximately 10,000 

pornographic images and videos. Moreover, the prosecutor 

commented in his opening statement that the possession charge 

was founded on Mason’s “entire collection.” The government’s 

proof as to the possession count vastly exceeded the files 

listed by name in the receipt portions of the indictment. See

 * Although our circuit has not formally decided whether 

possession is a lesser-included offense, see United States v. 

Brown, 701 F.3d 120, 125 n.6 (4th Cir. 2012), we need not do so 

here because we find that the relevant counts in Mason’s 

indictment were in fact based on distinct conduct.
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United States v. Bobb, 577 F.3d 1366, 1375 (11th Cir. 2009) 

(rejecting multiplicity claim in a similar case). Mason raised 

no multiplicity objection to the government’s case at trial, and 

his multiplicity argument therefore fails under the Olano

standard.

IV.

Mason next argues that the district court erred in 

admitting documents and testimony under Federal Rule of Evidence 

414(a), which provides that “[i]n a criminal case in which a 

defendant is accused of child molestation, the court may admit 

evidence that the defendant committed any other child 

molestation. The evidence may be considered on any matter to 

which it is relevant.”

Under this rule, the district court permitted the 

introduction of certified documents relating to Mason’s past 

convictions for taking indecent liberties with children. The 

culpable conduct, which involved the repeated sexual molestation 

of two boys aged 9 and 11, occurred from 1996-97. In addition to 

documentary evidence, the government was also permitted to 

introduce testimony from an investigator identifying the age and 

gender of the victims. 

Mason does not contest that this evidence was facially 

admissible under Rule 414. Evidence admitted under Rule 414, 
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however, remains subject to the balancing test imposed by Rule 

403, which requires that evidence “‘be excluded if its probative 

value is substantially outweighed by the danger of unfair 

prejudice’ to the defendant.” United States v. Kelly, 510 F.3d 

433, 437 (4th Cir. 2007) (quoting Fed. R. Evid. 403). We review 

a district court’s decision to admit a particular item of 

evidence for abuse of discretion. United States v. Young, 248 

F.3d 260, 266 (4th Cir. 2001). 

We have previously determined that in applying Rule 403’s 

balancing test to Rule 414 evidence, a court should consider 

several factors, including: “(i) the similarity between the 

previous offense and the charged crime, (ii) the temporal 

proximity between the two crimes, (iii) the frequency of the 

prior acts, (iv) the presence or absence of any intervening 

acts, and (v) the reliability of the evidence of the past 

offense.” Kelly, 510 F.3d at 437.

Under these factors, it is plain that no abuse of 

discretion occurred here. Mason’s present and past convictions 

were similar insofar as they both involved the exploitation of 

children. Although the earlier convictions were imposed 12 years 

prior to the instant indictment, that interval is still much 

shorter than the 22 year intervening period deemed acceptable in 

our Kelly decision. Id.
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Furthermore, the acts underlying the prior convictions were 

frequent: Mason repeatedly molested his victims over the course 

of several months. The evidence demonstrating this conduct was 

also eminently reliable: the prosecution introduced both 

certified documents and testimony from an investigator 

personally involved in the earlier case. Mason’s evidentiary 

objection therefore fails to establish an abuse of discretion on 

the part of the trial court.

V.

Finally, Mason argues that the 480-month sentence imposed 

by the district court is both procedurally and substantively 

unreasonable. Sentencing decisions are reviewed deferentially on 

appeal for abuse of discretion. United States v. MendozaMendoza, 597 F.3d 212, 216 (4th Cir. 2010). This inquiry 

includes both a substantive and a procedural component. Gall v. 

United States, 552 U.S. 38, 51 (2007). 

A.

The procedural prong of the reasonableness inquiry 

requires, as a threshold matter, that the sentencing court 

correctly calculate the applicable Guidelines range. Gall, 552 

U.S. at 49. The district judge must then give “both parties an 

opportunity to argue for whatever sentence they deem 

appropriate,” before proceeding to “consider all of the 
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§ 3553(a) factors to determine whether they support the sentence 

requested by a party.” Id. at 49-50. The judge is required to

“make an individualized assessment based on the facts 

presented.” Id. at 50. “After settling on the appropriate 

sentence, he must adequately explain the chosen sentence....” 

Id.

Mason does not contest that the Guideline ranges were 

correctly calculated, nor does he deny that the court engaged in 

an extended sentencing dialogue with both parties, permitting 

them to voice their concerns and responding to particular 

arguments. In the course of this dialogue, the district court 

expressly tailored its decision to the specific facts of the 

case, noting, among other things, Mason’s history of criminal 

activity and the extreme breadth of his pornography trafficking 

activities. It connected these observations to the criteria 

enumerated in 18 U.S.C. § 3553. The sentence imposed here thus 

satisfies the procedural requirements outlined in Gall.

B.

Mason’s sentence is also substantively reasonable. The term 

of imprisonment imposed by the district court is within the 

Guidelines range and is therefore entitled to a presumption of 

reasonableness on appeal. United States v. Montes-Pineda, 445 

F.3d 375, 379 (4th Cir. 2006). Mason’s sentence is supported 

both by the temporal and quantitative scope of his misconduct. 
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With respect to his contention that the Guidelines themselves 

are unreasonable, “the proper forum in which to raise this issue 

is Congress or the Sentencing Commission, not a federal court.” 

United States v. Johnson, 445 F.3d 339, 344 (4th Cir. 2006). 

Mason has thus failed to demonstrate that the district court’s 

sentencing ruling was substantively unreasonable.

VI.

For the foregoing reasons, we reject each of Mason’s 

arguments. His convictions and sentence are affirmed.

AFFIRMED