United States v. Anson

304 F. App'x 1
CourtCourt of Appeals for the Second Circuit
DecidedOctober 15, 2008
DocketNo. 07-0377-cr
StatusPublished

This text of 304 F. App'x 1 (United States v. Anson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Anson, 304 F. App'x 1 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Defendant-appellant Donald J. Anson appeals from a judgment of conviction of two counts of transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1), one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), one count of possessing a computer that contained child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and thirty-eight counts of possessing child pornography that had been transported by computer in violation of 18 U.S.C. § 2252A(a)(5)(B). He was sentenced principally to 288 months’ imprisonment — including a forty-eight month consecutive term of imprisonment for possessing a computer containing child pornography (count 4) — and a lifetime term of supervised release. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.

Anson raises twenty-one issues on appeal that we group into ten thematic categories.

[3]*3First, he challenges, pursuant to the Fourth Amendment, the search of his home and the seizure of his computer and thirty-nine CD-ROMs, thirty-eight of which contained child pornography. He argues that the search warrant was invalid because (a) the affidavit that supported it was riddled with alleged half truths and omissions and (b) there was no probable cause to issue the warrant. He also argues that the inspection of the computers and CD-ROMs seized during the search took place after the warrant had expired. None of these arguments has merit. With respect to the affidavit in support of the search warrant, the record is devoid of evidence suggesting that it contained information that “the affiant knew was false or would have known was false except for his reckless disregard of the truth,” United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and the information that it did contain was sufficient, in our view, to support a finding of probable cause to search Anson’s residence. The claim that the inspection of the computers and CD-ROMs was untimely is contradicted by the August 2, 2004 Order Amending Search Warrant, which permitted the government to retain the “computers and computer-related equipment” without temporal limitation. Accordingly, Anson’s Fourth Amendment claims are without merit.

Second, Anson contends that the District Court erred by not suppressing, pursuant to the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), inculpatory statements that he made to the police during the search of his home. As Anson recognizes, the District Court’s ruling turned “principally upon credibility determinations” made by a magistrate judge. Appellant’s Br. 30. Because we see nothing clearly erroneous in these determinations, Anson’s Fifth Amendment and Miranda claims must fail. See Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”).

Third, Anson challenges the sufficiency of the indictment, arguing that it lacked specificity and contained both multiplieitous and duplicitous charges.

Anson bases his specificity challenge on the indictment’s asserted failure to describe in detail the images that correspond to each count of the indictment and the dates on which they were received. There is no merit to this contention because the indictment described the materials at issue — contained on the computer hard drive and CD-ROMs — and the charges based thereon “with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.” United States v. Walsh, 194 F.3d 37, 44 (2d Cir.1999) (quotation marks omitted); see also United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.1992) (“[A]n indictment must be read to include facts which are necessarily implied by the specific allegations made.” (quotation marks omitted)).

Anson’s multiplicity claim turns on his assertion that “the non-specific allegations in Count 3 encompassed precisely the same child pornography alleged in Counts 4 through 43.” Appellant’s Br. 39. “An indictment is multiplicitous if it charges the same crime in two [or more] counts.” United States v. Ansaldi, 372 F.3d 118, 124 (2d Cir.2004). “When, as here, the [4]*4same statutory violation is charged twice, the question is whether the facts underlying each count were intended by Congress to constitute separate ‘units’ of prosecution.” Id. In Count 3, the grand jury charged Anson with receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). Counts 4 through 43 set forth multiple violations of a separate statutory provision, 18 U.S.C. § 2252A(a)(5)(B), possession of child pornography, based on images stored on the hard drive of Anson’s computer and on thirty-eight CD-ROMs. Because § 2252A(a)(2)(A) prohibits the receipt of “any child pornography,” each pornographic image received could constitute a separate “unit” of prosecution. Similarly, the prohibition of the possession of “any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography,” set forth in § 2252A(a)(5)(B), lends itself to treating each book, magazine, or other material — in this case a computer hard drive and thirty-nine CD-ROMs — as separate “units” of prosecution. With respect to the possible overlap of Count 3 with Counts 4 through 43, nothing in the indictment indicates that the same image or images underlying the receipt charge (Count 3) must also underlie the possession charges (Counts 4 through 43). Accordingly, the indictment did not charge Anson with the same crime in multiple counts.

Leaving no stone unturned, Anson also contends that, in Counts 1, 2, and 3, the indictment was duplicitous — that is, it “jointed] two or more distinct crimes in a single count.” United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir.1992). He argues that “[b]ecause each ‘transportation’ [as charged in Counts 1 and 2] or ‘receipt’ [as charged in Count 3] of child pornography is a separate criminal incident under 18 U.S.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
Chapman v. California
386 U.S. 18 (Supreme Court, 1967)
United States v. Leon
468 U.S. 897 (Supreme Court, 1984)
Anderson v. City of Bessemer City
470 U.S. 564 (Supreme Court, 1985)
Rutledge v. United States
517 U.S. 292 (Supreme Court, 1996)
Crawford v. Washington
541 U.S. 36 (Supreme Court, 2004)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Joseph M. Margiotta
646 F.2d 729 (Second Circuit, 1981)
United States v. Gary Washington and Jeffrey Shepard
861 F.2d 350 (Second Circuit, 1988)
United States v. Martin Roman
870 F.2d 65 (Second Circuit, 1989)
United States v. Nick Stavroulakis
952 F.2d 686 (Second Circuit, 1992)
United States v. Harry L. Fore
169 F.3d 104 (Second Circuit, 1999)
United States v. John Walsh
194 F.3d 37 (Second Circuit, 1999)
United States v. Yousef
327 F.3d 56 (Second Circuit, 2003)
United States v. Martin C. Myers
355 F.3d 1040 (Seventh Circuit, 2004)
United States v. Scott Ansaldi, Rodney Dean Gates
372 F.3d 118 (Second Circuit, 2004)
United States v. John Larkin Trotter
478 F.3d 918 (Eighth Circuit, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
304 F. App'x 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-anson-ca2-2008.