NONPRECEDENTIAL DISPOSITION
Argued November 19, 2024
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN. NO. 23-CR-10-JPS J. P. STADTMUELLER, JUDGE.
BEFORE AMY J. ST. EVE, CIRCUIT JUDGE JOHN Z. LEE, CIRCUIT JUDGE JOSHUA P. KOLAR, CIRCUIT JUDGE
ORDER
Joseph Thomas was charged with one count of knowingly possessing child pornography. 18 U.S.C. § 2252A(a)(5)(B). At trial, over Thomas's objections, the government presented evidence of two hard drives seized from Thomas that contained hundreds of images of child pornography. On appeal, Thomas argues the district court abused its discretion by permitting the government to introduce both drives and contends that the drives went beyond what was relevant to the charged offense. Because the drives and the images on them were part or at least relevant to the charged offense, the district court did not abuse its discretion in admitting them into the record; thus, we affirm.
Between 2017 and 2021, Thomas downloaded hundreds of images of child pornography from an online file-sharing network. In 2021, the Federal Bureau of Investigation conducted a warranted search of Thomas's apartment and seized electronic equipment, including his computer and two hard drives. The government later charged Thomas with one count of "knowingly possess[ing] material that contained images of child pornography." The indictment added that the child pornography Thomas possessed "included" two files, and it identified their partial file names ("d1970...8184" containing a "minor boy" and "bef41.9474" depicting "two minor children").
The government presented its case to a jury. FBI detectives testified about the forensic analysis of the two hard drives that officers seized. When the government asked its forensic examiner to describe some images on the first hard drive, Thomas objected. He argued that the examiner's description was "not relevant because the indictment charges Mr. Thomas with possessing a specific image." The court overruled this objection and two other similar objections. The forensic examiner then testified that the two hard drives contained images of minors in sex acts, and the metadata showed an attempt to delete the images. The court also admitted the two drives into evidence over Thomas's objections. Finally, the government showed some images from each hard drive to the jury.
In his defense, Thomas testified that, although he knew that the filesharing network had images of child pornography, he had no way of knowing that the files he downloaded contained such images before downloading them. As a result, Thomas said, he had a practice of downloading many files at once to review later, and whenever he noticed child pornography among the downloaded files, he deleted it.
At the conclusion of the trial, the jury returned a guilty verdict, and Thomas was sentenced to 11 years of imprisonment.
On appeal, Thomas argues that the district court abused its discretion by admitting both hard drives and any images beyond the two files specified in the indictment. According to Thomas, this added evidence was irrelevant and unfairly prejudicial because the government had charged Thomas with only one count of possession under 18 U.S.C. § 2252A(a)(5)(B). Thus, in his view, the court should have confined the government to one disk and the two files of child pornography specified in the indictment.
The parties agree that we review relevance rulings on preserved objections for abuse of discretion. United States v. West, 53 F.4th 1104, 1107 (7th Cir. 2022). Under this standard, we reverse "only if no reasonable person could take the judge's view of the matter," United States v. Pulliam, 973 F.3d 775, 782 (7th Cir. 2020) (citation omitted), and the admission unfairly prejudiced the defendant, see United States v. McGee, 408 F.3d 966, 981 (7th Cir. 2005). Additionally, Thomas argues-for the first time on appeal-that the admission of the second hard drive and its images rendered the indictment duplicitous because the government offered evidence of "multiple offenses," violating his right to a unanimous jury on any particular offense.
The district court reasonably overruled Thomas's objection to the admission of both drives and their images. To support his argument that a prosecution of one count of possession of pornographic material under § 2252A(a)(5)(B) is limited to the two files listed in the indictment, Thomas cites United States v. Bopp, which states that "each 'material,' or medium, containing an image of child pornography" is a separate offense. 79 F.4th 567, 571 (5th Cir. 2023) (citation omitted). But this statement cuts against Thomas's argument that the district court had to confine the government to the two images listed in the indictment. As Bopp explained, § 2252A(a)(5)(B) criminalizes possession of "material," and listing specific files in an indictment (in Bobb, only four were listed) does not limit the scope of prosecution: "The statute criminalizes possession of material containing child pornography. The phone was that 'material,' no matter whether it contained one image or twenty thousand." Id. at 572. Here, the two disks (and the images on them) were that material, and the images on them were admissible.
The district court did not abuse its discretion in admitting the second hard drive and related images for another reason: They were relevant to show that Thomas "knowingly" possessed child pornography as the statute requires. At trial, Thomas denied knowing the content of the images on his drives before he downloaded files to them. The district court reasonably admitted the images on both hard drives because they were relevant to the government's effort to rebut his denial. The sheer volume of the images across two disks made it less probable that he had downloaded the images accidentally. See West, 53 F.4th at 1108 (upholding admission because "[t]he fact that child pornography images were found on not just one but six devices made it more likely that [the defendant] knew of their existence").
Lastly, Thomas raises a new argument on appeal-that the admission of the second hard drive and its images rendered the indictment duplicitous. Admission of the second drive, he contends, created two problems for him. First, he argues, its admission was unfairly prejudicial, see FED. R. EVID. 403, because the absence of the second drive from the indictment denied Thomas adequate notice that the government intended to charge him with possessing that drive. Second, its admission denied him the assurance of jury unanimity because he cannot "determine whether all twelve jurors agreed that [he] possessed the same hard drive that contained the same image depicting child pornography."
Thomas forfeited his opportunity to make a duplicity challenge by failing to raise the issue before trial. "Rule 12(b)(3)(B)(i) of the Federal Rules of Criminal Procedure provides that any defect in the indictment-including 'joining two or more offenses in the same count (duplicity)'-that can be raised by pretrial motion must be so raised," and failure to raise the issue before trial forfeits it unless there is "good cause" for the omission. United States v. Nixon, 901 F.3d 918, 920-21 (7th Cir. 2018). He replies that he has good cause because the "duplicity arose during trial." (Thomas Reply Br. at 8.) But if that is his position, then he has raised a different argument-that the government constructively amended the indictment when it introduced the second hard drive into evidence at trial and sought to convict him of possessing it. See United States v. Chaoqun, 107 F.4th 715, 727-28 (7th Cir. 2024).
Whether we consider this argument a duplicity challenge to the indictment or a contention of a constructive amendment at trial, our review would be for plain error because Thomas did not preserve either argument. See United States v. Olano, 507 U.S. 725, 732 (1993). But because no "plain" error occurred, we conclude that reversal is unwarranted. Id.
The analysis is the same under both formulations: An indictment is not duplicitous if it charges a single offense that may be carried out through many different means. United States v. Lee, 77 F.4th 565, 571 (7th Cir. 2023). Additionally, "an indictment charging multiple acts in the same count, each of which could be charged as a separate offense, may not be duplicitous where these acts comprise a continuing course of conduct that constitutes a single offense." Id. (quoting United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir. 2001)) (emphasis added). Under these standards, the indictment here is not plainly duplicitous. Thomas's possession of child pornography arose through multiple means (his two hard drives). It also arose from a continuing course of conduct because he used the file-sharing service to download multiple files simultaneously; each image download need not be deemed a discrete criminal act. For the same reasons, the government did not amend his indictment constructively at trial to contain "extra" charges beyond the one in the indictment.
AFFIRMED
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