United States v. Buchanan

485 F.3d 274, 2007 U.S. App. LEXIS 9118, 2007 WL 1153709
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 19, 2007
Docket04-41364
StatusPublished
Cited by58 cases

This text of 485 F.3d 274 (United States v. Buchanan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Buchanan, 485 F.3d 274, 2007 U.S. App. LEXIS 9118, 2007 WL 1153709 (5th Cir. 2007).

Opinions

OWEN, Circuit Judge:

Following a jury trial, Joseph Buchanan was convicted of four counts of receiving child pornography transported in interstate commerce by computer1 and one count of possession of child pornography.2 Buchanan appeals his conviction and sentence on numerous grounds. Because the first four counts against Buchanan are multiplieitous, we vacate them and remand with instructions to reinstate only one of the convictions and to resentence him consistent with this opinion. All of Buchanan’s other claims lack merit.

I

Joseph Buchanan was employed by the United States Army Corps of Engineers as a park ranger and served at its Lake Texoma location. Each ranger was assigned an individual computer that required a unique password for access and would log the actions on the computer to a record tied to the specific ranger. In early 2001, a Corps system administrator in Tulsa received a complaint from the Texo-ma station that the office’s internet access was slow. The administrator used a program to determine that Buchanan’s computer was slowing down the office’s access by connecting to “an X-rated porn site.” The Corps began monitoring Buchanan’s computer use and determined that he continued to view pornography on his office computer.

[277]*277When confronted, Buchanan admitted the misuse and stated he would never do it again. In March 2002, Ron Jordan, the Lake Texoma manager, received a report that Buchanan was again viewing pornography. Using the network administrator’s password, Jordan accessed Buchanan’s computer and discovered pornographic photographs and movies involving adults as well as bestiality. Jordan printed out an image and questioned Buchanan, who again admitted to viewing the pornography and promised to cease these activities. In April, Jordan received another report about Buchanan, found pornographic images on a scan of Buchanan’s computer, and suspended Buchanan for two days.

In August 2002, Jordan resumed monitoring Buchanan’s computer use after receiving another report that Buchanan was viewing pornography on his work computer. On August 28, Jordan found pornographic images in Buchanan’s temporary internet folder — the location on the hard drive in which data from accessed webpag-es, including images, are automatically stored. Jordan copied some of the temporary internet folder files from Buchanan’s computer to his computer. The next day, Jordan saw that more files had been added to Buchanan’s temporary internet folder. Some of these files were images of nude, prepubescent children. Jordan noticed that files were being added and deleted as he viewed the folder. A number of graphic files with sexually explicit names were automatically downloaded — showing that someone was viewing a webpage or web-pages containing these images on the internet — over a span of several minutes during a single computer session. Jordan copied some of the files, including both child and adult pornography, onto a compact disc that was later turned over to law enforcement officials.

FBI Agent Wes Wheeler investigated Buchanan’s computer use and found that four large images on the CD depicted children from 10 to 12 years old engaged in sexually explicit conduct. Wheeler met with Buchanan on September 12, 2002 and showed him images printed from the CD. Buchanan admitted that he had visited internet sites containing child pornography and that he had in the past saved such images, viewed them, and later deleted them. He said the sites he typically visited contained both adult and child pornography.

An FBI computer forensic examiner determined that the CD contained 127 images, including 54 depicting minors from 7 to 15 years old. The examiner found fifty small, “thumbnail” images depicting minors — pictures displayed on a web page to preview an image, which a viewer could click to access a larger, higher-resolution version of the same image — in addition to the four larger images of child pornography Agent Wheeler had earlier identified. The examiner also used sophisticated software to find a number of encrypted files on Buchanan’s hard drive. The files were password-protected and buried nine directories deep through the creation of multiple subdirectories. The examiner further found an encryption program, called Scramdisk, designed to disguise files. After a thorough sweep of the hard drive with various software programs, the examiner found over 3,000 pornographic images on the hard drive, including more than 300 images of children from 3 to 15 years old engaged in sexually explicit conduct, each of which was hidden and password-protected.

A superseding indictment charged four separate counts of. receipt and attempted receipt of child pornography under 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1) — one count for each of the four larger images [278]*278from the CD provided by Jordan. A fifth count charged Buchanan with possession of child pornography under 18 U.S.C. § 2252(a)(4)(A) based on eleven images found on Buchanan’s hard drive.

Following a jury trial, Buchanan was convicted on all five counts and sentenced to 71 months in prison for each of the first four counts and 60 months for the fifth count, all to be served concurrently. Buchanan was also assessed a $100 special assessment for each count and a $5,000 fine&emdash;$5,500 total. Buchanan appeals both his convictions and sentence.

II

Buchanan argues that the convictions for receipt of child pornography in counts one through four of the superceding indictment are multiplicitous. Convictions are multiplicitous when the prosecution charges “a single offense in more than one count.”3 The superseding indictment alleged that Buchanan had knowingly received and attempted to receive one or more visual depictions of minors engaging in sexually explicit conduct by means of a computer and the internet, and the indictment then listed the four counts in a table with information about four images, as follows:_

Count Image Description
1 andy&emdash;l[l].jpg [omitted]4
2 hard ll[l].jpg [omitted]
3_matt[l].jpg_[omitted]
4Boyshard4[l].jpg [omitted] 3.

district court denied Buchanan’s motion to quash the indictment, and we review that ruling de novo.5 Buchanan maintains that the indictment does not allege that his receipt of the four images was the result of four separate transactions. He also contends that the four images were automatically downloaded by the computer he was using into temporary in- ternet folders while he was viewing images of adults contained on the same, single webpage.

The rule against multiplicity is grounded in the Fifth Amendment’s prohibition against double jeopardy, intending “to pre- vent multiple punishments for the same act.”6

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Cite This Page — Counsel Stack

Bluebook (online)
485 F.3d 274, 2007 U.S. App. LEXIS 9118, 2007 WL 1153709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-buchanan-ca5-2007.