NOT RECOMMENDED FOR PUBLICATION File Name: 24a0531n.06
No. 22-3937
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Dec 23, 2024 KELLY L. STEPHENS, Clerk ) RICHARD LEMOINE, JR., ) Petitioner-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE NORTHERN ) DISTRICT OF OHIO UNITED STATES OF AMERICA, ) Respondent-Appellee. ) OPINION )
Before: MOORE, COLE, and LARSEN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Richard G. Lemoine, Jr., a federal prisoner,
appeals from the district court’s order denying his motion to vacate his sentence pursuant to
28 U.S.C. § 2255. Lemoine’s sole claim on appeal is that his counsel at sentencing was
constitutionally ineffective for failing to raise an objection based on the Double Jeopardy Clause
when the district court sentenced him to 151 months’ imprisonment for both receiving and
possessing child pornography.
For the reasons that follow, we hold that the district court’s decision was not clearly
erroneous. Accordingly, we AFFIRM the district court’s order denying Lemoine’s § 2255
motion.
I. BACKGROUND
On August 10, 2016, Lemoine pleaded guilty to a two-count indictment charging him with:
(1) from December 26, 2012, through July 5, 2015, receiving computer files that contained visual
depictions of real minors engaged in sexually explicit conduct in violation of 18 U.S.C. No. 22-3937, Lemoine v. United States
§ 2252(a)(2) (Count 1); and (2) possessing child pornography on July 8, 2015, that included an
image of a prepubescent minor in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 2). R. 31
(8/10/2016 Plea Hr’g Tr. at 16–17) (Page ID #188–89).
Lemoine began viewing child pornography in 2010. R. 15 (Final Presentence Report ¶ 15)
(Page ID #57). Between 2010 and 2015, Lemoine accessed various websites to trade links to child
pornography with others, who in return would provide Lemoine with links to other videos. Id.;
see also R. 53-1 (Lemoine Confession) (Page ID #384). Lemoine viewed child pornography on
his laptop and saved the files to a thumb drive that he hid in his gun cabinet. R. 53-1 (Lemoine
Confession) (Page ID #384). Lemoine also viewed child pornography by: accessing specific
websites, watching videos on a media player, and trading links with others online. Id.
Between January 2, 2015, and February 22, 2015, Lemoine accessed a child pornography
website (“Playpen”)1 for a total of thirty-two hours, during which he accessed multiple posts that
contained links to child pornography. R. 15 (PSR ¶¶ 8–13) (Page ID #56–57). Following law-
enforcement investigation into Lemoine’s activities on Playpen, the FBI executed a search warrant
at Lemoine’s residence on July 8, 2015, and seized his laptop (which included its hard drive),
smartphone, and thumb drive. Id. ¶¶ 9, 14 (Page ID #57). A forensic analysis of the devices
showed 487 videos and 697 images of child pornography, id. ¶ 14 (Page ID #57), of which 477
videos and 696 images were unique, R. 53-2 (Forensic Analysis at 2) (Page ID #386). Lemoine’s
laptop contained eighty-four unique images and no videos of child pornography, his thumb drive
1 Throughout this opinion, we refer to what was denoted “Website A” before the district court by its actual name, Playpen. See Gov’t Br. at 4 (noting that what was described as “Website A” in the PSR was actually named Playpen) (citing R. 53-1 (Confession) (Page ID #384) (Lemoine referring to Playpen); R. 15 (PSR ¶¶ 7–9) (Page ID #56–57) (PSR referring to Lemoine’s activities on Website A)).
2 No. 22-3937, Lemoine v. United States
contained 612 unique images and 477 unique videos of child pornography, and his smartphone
contained no child pornography. Id. at 3 (Page ID #387); see also R. 53 (U.S. Br. in Supp. at 3)
(Page ID #378). Lemoine was arrested on April 28, 2016. R. 5 (Executed Arrest Warrant) (Page
ID #18).
Sometime between November 8, 2016, and sentencing on November 22, 2016, Lemoine’s
original counsel died, and no sentencing memoranda were filed. See R. 74 (6/18/2021 Hr’g Tr. at
7) (Page ID #485). The docket does not show at what point replacement counsel was appointed
for Lemoine or when replacement counsel filed his notice of appearance. At sentencing, neither
party objected to the presentence report, and the district court calculated Lemoine’s advisory
Guidelines range of 151 to 188 months’ imprisonment. R. 28 (Sent’g Tr. at 2, 4) (Page ID #156,
158). Based on the conduct described above, the district court sentenced Lemoine under both
counts to a total of 151 months’ imprisonment with a $200 special assessment ($100 for each
conviction). Id. at 11 (Page ID #165). Lemoine raised no objections to the judgment imposed, id.
at 15 (Page ID #169), and no appeal was filed, see Lemoine v. United States, 819 F. App’x 358,
360 (6th Cir. 2020).
A little over a year later, on November 27, 2017, Lemoine filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255, R. 25 (Mot. to Vacate) (Page ID #95), which the district
court denied on procedural grounds, R. 33 (1/25/2018 D. Ct. Mem. and Order) (Page ID #195).
Lemoine filed an amended motion on February 8, 2018, R. 34 (Am. Mot. to Vacate at 1) (Page ID
#197), which the district court denied on the merits, R. 41 (3/28/2018 D. Ct. Order and Mem.)
(Page ID #339). Lemoine appealed.
3 No. 22-3937, Lemoine v. United States
On appeal, a prior panel of this court held that the district court “did not squarely address
Lemoine’s claim[]” that counsel was constitutionally deficient for failing to raise double-jeopardy
objections at his sentencing. Lemoine, 819 F. App’x at 361. The panel noted that United States v.
Ehle held “that convictions for receipt of child pornography and possession of the same child
pornography violate the Double Jeopardy Clause,” but that “separate conduct” could support
separate convictions without violating the Double Jeopardy Clause. Id. at 363–64 (citing United
States v. Ehle, 640 F.3d 689, 698–99 (6th Cir. 2011)). The district court did not clearly address
“whether separate conduct support[ed] Lemoine’s convictions,” and therefore the panel remanded
for further factual findings. Id.
On remand, the district court ordered additional briefing and held a hearing as to whether
separate conduct supported Lemoine’s two convictions. As part of its supplemental briefing, the
Government filed Lemoine’s July 8, 2015, confession and the FBI’s forensic analysis of his
computer, smartphone, and thumb drive. R. 53 (U.S. Br. in Supp. at 1–8) (Page ID #376–88). At
a hearing held on June 18, 2021, the Government argued that Lemoine’s conviction for receipt of
child pornography was supported by his activities on Playpen: “The FBI logs as demonstrated in
the record for [Playpen] show that between January 2nd, 2015, and February 22nd, 2015,
[Lemoine] actively logged in the website for 32 hours . . . and was able to view and download
multiple posts containing child pornography.” R. 74 (6/18/2021 Hr’g Tr. at 13) (Page ID #491).
The district court accepted the Government’s representation. Id. As for Count 2, the Government
represented that on July 8, 2015, “the FBI execut[ed] a search warrant, and that include[d] all the
material on [Lemoine’s] laptop and on [Lemoine’s] storage drives and the forensic analyses.” Id.
The Government stressed that the child pornography found in Lemoine’s possession on July 8,
4 No. 22-3937, Lemoine v. United States
2015, was “not the same material that [Lemoine] had accessed and downloaded for Count 1,
separate time range.” Id. As the Government explained, “besides th[e] 32 hours” Lemoine had
spent on Playpen between January 2, 2015, and February 22, 2015, he “had over the years
downloaded items, [and] had also then transferred them to a different storage device and had
others.” Id. at 10 (Page ID #488). The district court confirmed that it understood that the conduct
supporting the charges was “[s]eparate,” as described by the Government. Id. at 13 (Page ID
#491).
Later that same day, the district court entered a memorandum opinion and order denying
Lemoine’s § 2255 motion. R. 61 (6/18/2021 D. Ct. Mem. Op. and Order at 1) (Page ID #403).
The district court found that “Counts One and Two involved different material, different time
frames, and different conduct.” Id. at 2 (Page ID #404). Regarding Count 2, the possession charge,
the district court found that the charge was based on “84 images on [Lemoine’s] laptop [that] did
not overlap with charges in Count One” and on his “thumbdrive contain[ing] 612 unique images
and 477 unique videos, not connected to the [Playpen] downloads targeted in Count One.” Id. at
2–3 (Page ID #404–05). Regarding Count 1, the receiving charge, the district court found that the
charge was “limited to [Lemoine’s] use of his computer” and “downloads from [Playpen]” and to
“[Playpen] downloads targeted in Count One.” Id. at 3 (Page ID #405) (citing R. 53 (U.S. Br. in
Supp. at 3) (Page ID #378)). The district court concluded that Lemoine’s counsel could not have
been ineffective where there was no double-jeopardy violation. Id. at 3–4 (Page ID #405–06).
On September 22, 2021, the district court resentenced Lemoine to a 151-month prison term
and a special assessment of $100 based on Count 1, and dismissed Count 2 on the Government’s
motion. R. 68 (Dkt. Entry, Mins. of Proceedings). We vacated the district court’s amended
5 No. 22-3937, Lemoine v. United States
criminal judgment because the district court lacked jurisdiction to resentence Lemoine, and we
remanded with instructions to reinstate the original criminal judgment and for the district court to
issue a final order disposing of Lemoine’s § 2255 motion. United States v. Lemoine, No. 21-3890
(6th Cir. Oct. 6, 2022). The district court did both on October 28, 2022. R. 80 (10/28/2022 D. Ct.
Mem. Op. and Order) (Page ID #530) (reinstating original criminal judgment); see also R. 81
(10/28/2022 D. Ct. Order) (Page ID #532) (dismissing Lemoine’s § 2255 motion and denying a
certificate of appealability).
Lemoine timely appealed this decision, and we issued a certificate of appealability as to
Lemoine’s ineffective-assistance claim. United States v. Lemoine, No. 22-3937 (6th Cir. Aug. 14,
2023). As that order noted, “[r]easonable jurists could . . . debate whether [Lemoine’s trial]
counsel should have raised a double jeopardy claim.” Id. at 4. If Lemoine establishes that counsel
was deficient in failing to raise a double-jeopardy objection, then one of the two counts of
conviction must be dismissed and at a minimum the imposition of the statutory special assessment
of $100 on each count would show prejudice under the Sixth Amendment. Lemoine, 819 F. App’x
at 365. Thus, the issue we must resolve is whether the district court erred in finding that Lemoine’s
counsel was not deficient.
II. INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM
Lemoine’s appeal boils down to whether his convictions for receiving and possessing child
pornography suffer from a double-jeopardy violation. The district court determined that
Lemoine’s trial counsel could not be constitutionally ineffective where the evidence demonstrated
that there was no double jeopardy-violation. If his punishment does not violate the Double
Jeopardy Clause, then Lemoine cannot demonstrate that his trial counsel was constitutionally
6 No. 22-3937, Lemoine v. United States
ineffective for failing to object to Lemoine’s lawfully imposed sentence. For the reasons that
follow, we affirm the district court’s finding that Lemoine’s punishment does not violate the
Double Jeopardy Clause because separate conduct supports his separate convictions. See Ehle,
640 F.3d at 698–99.
Ineffective-assistance-of-counsel claims are mixed questions of law and fact. Strickland
v. Washington, 466 U.S. 668, 698 (1984). “A mixed question asks whether . . . ‘the rule of law as
applied to the established facts is or is not violated.’” U.S. Bank Nat’l Ass’n ex rel. CWCapital
Asset Mgmt. LLC v. Vill. at Lakeridge, LLC, 583 U.S. 387, 394 (2018) (quoting Pullman-Standard
v. Swint, 456 U.S. 273, 289 n.19 (1982)). We review a district court’s denial of a § 2255 motion
and ineffective assistance of counsel claims de novo. Rodriguez-Penton v. United States, 905 F.3d
481, 486 (6th Cir. 2018). We “accept the district court’s factual findings unless they are clearly
erroneous.” Id.
The district court found that Lemoine’s receiving charge was supported by his activities on
Playpen, and that his possession charge was supported by all of the images and videos found on
his computer and thumb drive, which were separate from his activities on Playpen. R. 61
(6/18/2021 D. Ct. Op. at 2–3) (Page ID #404–05). We hold that the district court did not commit
clear error in so finding and, accordingly, Lemoine’s punishment did not violate the Double
Jeopardy Clause. Although the record is ambiguous as to whether Lemoine downloaded any child
pornography from Playpen, the record is unambiguous that Lemoine accessed posts on Playpen
that linked to child pornography, and that Lemoine watched videos of child pornography on
Playpen via a “Tor” browser. These two activities support the conclusion that Lemoine accessed
and viewed child pornography on Playpen, which is sufficient conduct to support his conviction
7 No. 22-3937, Lemoine v. United States
for receipt of child pornography separate from his conviction for possession. Because accessing
and viewing (without downloading) child pornography can support a conviction for receiving child
pornography, the district court did not commit clear error when it found that Lemoine’s unlawful
activity could be split into distinct and separate offenses.
The Fifth Amendment’s Double Jeopardy Clause precludes the government from
punishing Lemoine twice for the same offense. U.S. CONST. amend. V. The Double Jeopardy
Clause is potentially implicated here because Lemoine may have been punished for both receiving
and possessing the same items of child pornography. In Ehle, we held that the possession and the
receiving provisions of the child pornography statutes when applied to the same child pornography
“proscribe the same offense, since the possessing provision does not require[] proof of any fact
that the receiving provision does not.” 640 F.3d at 694; see also United States v. Dudeck, 657 F.3d
424, 429 (6th Cir. 2011) (recognizing the same rule applies to the receipt and possession provisions
of both 18 U.S.C. § 2252 and 18 U.S.C. § 2252A). “As a matter of plain meaning, one obviously
cannot ‘receive’ an item without then also ‘possessing’ that item, even if only for a moment.”
Ehle, 640 F.3d at 695. In reaching this conclusion, we drew on the Supreme Court’s rationale in
Ball v. United States, wherein the Court held that “it is clear that Congress did not intend to subject
felons to two convictions; proof of illegal receipt of a firearm necessarily includes proof of illegal
possession of that weapon.” Id. (quoting Ball v. United States, 470 U.S. 856, 862 (1985)).
“Convicting [Lemoine] of both ‘knowingly receiving’ and ‘knowingly possessing’ the same child
pornography [would] therefore violate[] the Double Jeopardy Clause.” Id. at 698.
Before addressing the district court’s findings and conclusions, we first consider in greater
detail the record evidence on which the district court relied.
8 No. 22-3937, Lemoine v. United States
A. Evidence Before the District Court
There are several sources in the record describing Lemoine’s unlawful conduct. We find
it helpful first to lay out the record, in general terms, before addressing how the individual pieces
fit together to create a picture of the entirety of Lemoine’s unlawful conduct.
On April 27, 2016, the Government filed its indictment against Lemoine describing, in the
most general terms, Lemoine’s criminal activities. R. 1 (Indictment at 1) (Page ID #1). Then, on
August 10, 2016, the Government filed a plea notice describing the factual basis and relevant
conduct for Lemoine’s guilty plea, R. 13 (Plea Notice at 5–6) (Page ID #36–37), which the
Government also summarized at Lemoine’s plea hearing at which he pleaded guilty, held on the
same day, R. 31 (8/10/2016 Plea Hr’g Tr. at 12–14) (Page ID #184–86). Nearly three months later,
on November 8, 2016, Probation docketed the final PSR for Lemoine, which provided greater
detail regarding Lemoine’s unlawful conduct. R. 15 (PSR ¶¶ 6–15) (Page ID #56–57). Then,
finally, after remand from a prior panel of this court, the Government docketed on January 5, 2021,
a confession signed by Lemoine on July 8, 2015, R. 53-1 (Confession) (Page ID #384), and the
FBI’s forensic analysis of Lemoine’s laptop, thumb drive, and smartphone, R. 53-2 (FBI Analysis
at 1–4) (Page ID #385–88).
We begin with the confession.2 On July 8, 2015, the same day that the FBI seized
Lemoine’s laptop and thumb drive, Lemoine provided a voluntary statement to law enforcement.
R. 53-1 (Confession) (Page ID #384). As Lemoine explained in his confession, he “began looking
2 We note that Lemoine’s confession states that he was not abused as a child. R. 53-1 (Confession) (Page ID #384). In his interview with Probation, however, Lemoine “described being sexually abused between the ages of 5 and 15 by a male babysitter.” R. 15 (PSR ¶ 48) (Page ID #61).
9 No. 22-3937, Lemoine v. United States
at child pornography around 2010,” and he downloaded to his computer child pornography from
the internet, which he then saved onto his thumb drive that he hid in his gun cabinet. Id. He had
not viewed any child pornography within the week leading up to July 8, 2015. Id. In addition to
generally admitting to downloading child pornography beginning in 2010, Lemoine also
specifically admitted to “the use of Tor to watch the videos” on Playpen, to “view[ing] child
pornography through a media player . . . from [his] Dell laptop,” and to “trad[ing] child
pornography for five years via Omegle.” Id.3 As the FBI forensic analysis of Lemoine’s laptop
and thumb drive confirmed, Lemoine had eighty-four unique images of child pornography on his
laptop,4 612 unique images of child pornography on his thumb drive, and 477 unique videos of
child pornography on his thumb drive. R. 53-2 (FBI Analysis at 3) (Page ID #387).
Lemoine does not specifically state from which websites he downloaded and saved child
pornography and during what periods of time he accessed the various websites described—except
for noting that he used two websites “initially.” R. 53-1 (Confession) (Page ID #384). Neither
does the FBI analysis of his laptop and thumb drive indicate whether the images and videos found
3 Lemoine also references two other websites by name—but does not admit specifically to accessing child pornography through those sites—and states that if he “found a website [he] liked [he] bookmarked it for future use.” R. 53-1 (Confession) (Page ID #384). 4 In his plea notice, Lemoine agreed to the statement that “[a] forensic analysis of [his laptop, thumbdrive, and smartphone] revealed the presence approximately 487 (487) videos of child pornography on [his] computer.” R. 13 (Plea Notice at 6) (Page ID #37) (emphasis added). The Government reiterated the same at Lemoine’s plea hearing. R. 31 (8/10/2016 Plea Hr’g Tr. at 13) (Page ID #185). After a panel of this court remanded Lemoine’s § 2255 motion to the district court for additional fact finding on the double-jeopardy issue, the Government averred that the laptop had no videos of child pornography but eighty-four images of child pornography. R. 53 (U.S. Br. in Supp. at 3) (Page ID #378). The videos were in fact on Lemoine’s thumb drive. Id. The Government’s representations on remand match the numbers listed in the FBI’s analysis attached to the Government’s brief. R. 53-2 (FBI Analysis at 3) (Page ID #387). Although the sources in the analysis are unlabeled, “Source ID: QCV1B3” shows eighty-four images of “child abuse material,” and “Source ID: QCV1B5” lists 487 videos of “child abuse material.” Id. For these reasons, it is unlikely that Lemoine had 487 videos of child pornography on his laptop rather than his thumb drive.
10 No. 22-3937, Lemoine v. United States
in Lemoine’s possession on July 8 came from Playpen, Omegle, or any other source mentioned in
his confession, nor on what dates the files uncovered were downloaded and saved by Lemoine.
See R. 53-2 (FBI Analysis at 2–3) (Page ID #386–87). Between Lemoine’s confession and the
FBI’s analysis, there is no indication whether the material found in Lemoine’s possession on July 8
reflects his entire five-year history of downloading child pornography or some portion thereof, or
whether the collection solely came from downloads from Playpen, Omegle, or some other source.
Only the PSR describes specific image sets that Lemoine accessed on Playpen on a specific date,
but the PSR does not indicate whether Lemoine downloaded any of that material or whether any
or all of that material appeared in Lemoine’s collection seized on July 8. R. 15 (PSR ¶¶ 11–13)
(Page ID #57).
The Government filed an indictment against Lemoine on April 27, 2016. R. 1 (Indictment
at 1) (Page ID #1). In Count 1, the Government charged Lemoine with receiving “by computer,
numerous computer files, which files contained visual depictions of real minors” from December
26, 2012, through July 5, 2015. Id. The Government’s theory both before the district court and
here before us is that Lemoine “received” computer files of child pornography by downloading
images and videos from Playpen to his laptop and thumb drive. See R. 74 (6/18/2021 Hr’g Tr. at
13) (Page ID #491) (“between January 2nd, 2015, and February 22nd, 2015, [Lemoine] actively
logged in [Playpen] . . . and was able to view and download multiple posts containing child
pornography”); see also Gov’t Br. at 8–9 (“Specifically, Lemoine was charged with receiving child
pornography in Count 1, all relating to various images that he downloaded from the Playpen
website between January 2, 2015, and February 22, 2015.”); R. 13 (Plea Notice at 6) (Page ID #37)
(“[Lemoine] used a computer at his home . . . to connect to the Internet and download files that
11 No. 22-3937, Lemoine v. United States
contained” child pornography). Given the specific charge described in Count 1, the Government’s
theory makes sense: by downloading files from Playpen to his computer, Lemoine received child
pornography computer files.
In Count 2, the Government charged Lemoine with “possess[ing] a computer that contained
child pornography” on July 8, 2015. R. 1 (Indictment at 2) (Page ID #2). On July 8, 2015, the
FBI seized Lemoine’s laptop, thumb drive, and smartphone. See R. 53-2 (FBI Analysis at 2–3)
(Page ID #386–87). While no child pornography was found on Lemoine’s smartphone, the FBI
found eighty-four unique images of child pornography on Lemoine’s laptop and 612 unique
images and 477 unique videos on Lemoine’s thumb drive. Id. In all, the FBI identified 696 unique
images and 477 unique videos between Lemoine’s laptop and thumb drive seized on July 8, 2015.
Id. at 2 (Page ID #386).
B. The District Court’s Decision
Based on the evidence described above, the district court found that no double-jeopardy
violation occurred because it believed that different images of child pornography supported
Lemoine’s separate convictions.
The district court found that the possession charge (Count 2) “relates to at least 697 images
and 487 videos” that Lemoine downloaded and saved onto his laptop and thumb drive. R. 61
(6/18/2021 D. Ct. Op. at 2–3) (Page ID #404–05). Specifically, “[o]f these, 84 images on his
laptop did not overlap with charges in Count One related to downloads from [Playpen].” Id.
Further, “Lemoine’s thumb drive contained 612 unique images and 477 unique videos, not
connected to the [Playpen] downloads targeted in Count One.” Id. at 3 (Page ID #405). The
district court made no specific findings as to the conduct supporting Lemoine’s receiving charge
12 No. 22-3937, Lemoine v. United States
(Count 1). Rather than pointing to evidence in the record in support of the receiving charge, the
district court defined the receiving charge solely in contrast to Lemoine’s possession charge. See
id. In other words, while the district court was clear that none of the images or videos found in
Lemoine’s possession related to “[Playpen] downloads targeted in Count One,” the district court
did not point to any evidence of downloads Lemoine made from Playpen. Id.
The hearing that took place prior to the district court’s order is illuminating on this point.
As we have already explained, at the hearing, the district court accepted the Government’s
uncontested representation that Count 1 related to the thirty-two hours Lemoine spent on Playpen
between January 2, 2015, and February 22, 2015. R. 74 (6/18/2021 Hr’g Tr. at 13) (Page ID #491).
At that hearing, the Government represented that Lemoine “view[ed] and download[ed] multiple
posts containing child pornography” on Playpen. Id. Lemoine’s counsel did not object to the
Government’s factual representations, choosing instead to argue only about application of the
sentencing guidelines. Id. at 13–14 (Page ID #491–92). The district court thus accepted the
Government’s unopposed explanation for the factual basis underlying Lemoine’s receipt charge.
As for the possession charge (Count 2), the district court accepted the Government’s uncontested
representation that all of the child pornography found on Lemoine’s laptop and thumb drive was
“not the same material that [Lemoine] had accessed and downloaded” from Playpen between
January 2, 2015, and February 22, 2015. Id. at 13 (Page ID #491). Lemoine’s counsel did not
object to this argument either. See id. at 13–14 (Page ID #491–92). This means that the district
court found that all of the images and videos found in Lemoine’s possession on July 8, 2015, did
not come from Playpen during the six-week window at the beginning of 2015, without determining
the actual sources of that material. Because the PSR indicates that FBI records show that Lemoine
13 No. 22-3937, Lemoine v. United States
accessed Playpen only during this limited time period, the district court found that Lemoine did
not possess any child pornography that he downloaded from Playpen. See R. 15 (PSR ¶ 10) (Page
ID #57). Neither the Government nor the district court explained where Lemoine’s downloads
from Playpen ended up, if those downloads were not on his laptop or thumb drive on July 8, 2015.
With this background in mind, we can summarize the district court’s findings as follows:
Regarding Count 1, the receiving charge, between January 2, 2015, and February 22, 2015,
Lemoine downloaded and saved material from Playpen, and none of this material was found in his
possession on July 8, 2015, when the FBI seized his laptop and thumb drive. Regarding Count 2,
the possession charge, the FBI seized Lemoine’s laptop and thumb drive, which contained
hundreds of images and videos of child pornography. None of these files were downloaded from
Playpen during the period that Lemoine accessed the website as charged in Count 1—despite the
fact that Count 1 covered the entire period from December 26, 2012, through July 5, 2015. Thus,
according to the district court, separate conduct supported the separate convictions.
C. Clear-Error Analysis
As our analysis below explains, the district court’s finding that separate conduct supported
Lemoine’s separate convictions was not clear error. Because this finding was not clear error, and
because there can be no double-jeopardy violation where separate conduct supports separate
convictions, we affirm the district court’s order denying Lemoine’s § 2255 motion.
Our holding rests on the principle that a defendant may be guilty of receiving child
pornography merely by accessing and viewing that material (even if the defendant never
downloads that material). The district court found Lemoine downloaded child pornography from
Playpen separate from the child pornography found in his possession, which supported his separate
14 No. 22-3937, Lemoine v. United States
possession conviction. The record does not clearly support a finding that Lemoine downloaded
any child pornography from Playpen. The district court’s decision is not clear error, however,
because even if Lemoine did not download any material from Playpen, his accessing posts and
separately viewing videos of child pornography on that website could support his receipt
conviction separate from his possession conviction. Because the district court found that none of
the material in Lemoine’s possession originated from his activities on Playpen, and because it was
not clear error for the district court to find that Lemoine’s activity on Playpen is legally sufficient
to support his receipt conviction, Lemoine’s punishment does not violate the Double Jeopardy
Clause. In other words, his punishment was lawful because separate conduct supported his
separate convictions.
That said, although we ultimately conclude that the district court did not commit clear error
in finding that the sixty-five images on Playpen supported his receipt conviction separate from his
possession conviction, the district court’s factual conclusions are not the model of clarity. The
district court’s conclusion that there is evidence that the receiving charge is supported by
downloads from Playpen separate from any of the files found in Lemoine’s possession on July 8
is not obviously supported by the record. We acknowledge that Lemoine never contested, either
in his briefing or at the hearing, the Government’s contention that Lemoine had in fact downloaded
the Playpen images. See, e.g., R. 74 (6/18/2021 Hr’g Tr. at 13–14) (Page ID #491–92). The PSR
indicates that Lemoine “accessed” a series of links containing a total of sixty-five images of child
pornography on Playpen on February 22, 2015. R. 15 (PSR ¶¶ 11–13) (Page ID #57) (emphasis
added). Lemoine also confessed to “the use of Tor to watch the videos” on Playpen. R. 53-1
(Confession) (Page ID #384). Nowhere, however, does Lemoine admit to downloading material
15 No. 22-3937, Lemoine v. United States
from Playpen. Id. Nor does the PSR state that Lemoine downloaded any material from Playpen.
R. 15 (PSR ¶¶ 6–15) (Page ID #56–57). But, as explained below, downloading is not required to
support a receipt charge—accessing and actually viewing child pornography is enough. And the
record reveals that Lemoine did access posts that linked to at least sixty-five images that the district
court concluded supported his receipt charge. Lemoine also confessed to “the use of Tor to watch
the videos” on Playpen. R. 53-1 (Confession) (Page ID #384).
To be clear, accessing child pornography with intent to view, 18 U.S.C. § 2252A(a)(5)(B),
is a distinct statutory offense from receiving child pornography, 18 U.S.C. § 2252A(a)(2). On
October 8, 2008, Congress amended the child pornography statutes to add the words “or knowingly
accesses with intent to view,” to expressly proscribe accessing child pornography with the intent
to view. See Enhancing the Effective Prosecution of Child Pornography Act of 2007, Pub. L. No.
110–358, § 203, 122 Stat. 4001, 4003 (2008). A Senate report explained that the amendment “fills
a gap in existing law that has led some courts to overturn convictions of possessors of child
pornography. It amends the child pornography possession offense to clarify that it also covers
knowingly accessing child pornography on the Internet with the intent to view child pornography.”
S. Rep. No. 110–332, at 5 (2008), available at 2008 WL 1885750 (2008).
Prior to this amendment, the law was unsettled as to whether simply viewing child
pornography on the internet was legal. E.g., United States v. Tucker, 305 F.3d 1193, 1205 n.16
(10th Cir. 2002) (“We offer no opinion on whether the mere viewing of child pornography on the
Internet, absent caching or otherwise saving the image, would meet the statutory definition of
possession. We likewise do not address the question whether an individual could be found guilty
of knowingly possessing child pornography if he viewed such images over the Internet but was
16 No. 22-3937, Lemoine v. United States
ignorant of the fact that his Web browser cached such images.”). The 2008 amendment makes
clear that knowingly accessing child pornography “with intent to view” is illegal, even if no
viewing actually takes place. 18 U.S.C. § 2252A(a)(5)(B).
Other circuits have addressed under what factual circumstances an individual may be guilty
of receiving child pornography by accessing and actually viewing it on the internet without
downloading it under 18 U.S.C. § 2252A(a)(2). See United States v. Pruitt, 638 F.3d 763, 766
(11th Cir. 2011) (per curiam); see also United States v. Kain, 589 F.3d 945, 949–50 (8th Cir. 2009);
United States v. Winkler, 639 F.3d 692, 698–99 (5th Cir. 2011); United States v. Kuchinski, 469
F.3d 853, 862–63 (9th Cir. 2006). Accordingly, Lemoine could in fact be guilty of receipt by
accessing and actually viewing child pornography on his computer—even if he did not take the
additional step of downloading that material. Lemoine has not argued otherwise—neither before
us nor before the district court.
Ultimately, even if the record does not clearly support the district court’s finding that
Lemoine downloaded material from Playpen separate from the material found in his possession on
July 8, it was not clear error for the district court to conclude that Lemoine’s activities on Playpen
could support his receipt conviction separate from his possession conviction. Specifically,
Lemoine’s accessing and viewing child pornography on Playpen could support his receipt
conviction separate from the child pornography found in his possession on July 8. Thus, the record
demonstrates that Lemoine’s punishment does not violate the Double Jeopardy Clause.
IV. CONCLUSION
For these reasons, we AFFIRM the district court’s order denying Lemoine’s § 2255