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.
2

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). 
3

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 
4

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 
5

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. 
6

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. 
7

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. 
8

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 
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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
10

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. 
11

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 
12

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 
13

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.