United States v. Reedy

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-11042
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
THOMAS REEDY
AND
JANICE REEDY,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________
August 26, 2002
Before JOLLY, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Thomas and Janice Reedy appeal their con-
victions of, and sentences for, transporting
“visual depictions” of “minors engaging in sex-
ually explicit conduct,” in violation of 18
U.S.C. § 2252, and transporting “child pornog-
raphy,” in violation of 18 U.S.C. § 2252A.
Websites specializing in child pornography

-- 1 of 14 --

2
paid the Reedys a portion of their profits to
establish a sign-on, screening, and age verifica-
tion system for subscribers.
The government agrees that the district
court imposed multiplicitous sentences by
counting each image posted as a violation of
two statutes that criminalize the same conduct.
Accordingly, the court should resentence using
§ 2252 for the substantive counts of transport-
ing visual depictions of minors engaging in
sexually explicit activity.
The parties disagree, however, as to what
“unit of prosecution” should apply for a viola-
tion of § 2252. Because the statute does not
speak to the question, the rule of lenity re-
quires resentencing based on the number of
websites rather than the number of individual
images. We vacate and remand for resentenc-
ing only and reject the Reedys’ other argu-
ments.
I.
In April 1999, United States Postal Inspec-
tor R.C. Adams contacted Detective Steve
Nelson of the FBI’s Crimes Against Children
Task Force assigned to the Dallas Police De-
partment’s Child Exploitation Unit. Adams re-
quested Nelson’s aid in investigating an In-
ternet website named “kintamani.com,” which
linked to another website named “Lolita
World.” Nelson agreed to access the website
as part of an undercover investigation.
To gain access to all the information on the
website, a prospective subscriber was prompt-
ed to go to a sign-up page hosted by “KeyZ.”
The subscriber then had to provide his or her
name, address, and a credit card number to
which to charge a fee of $29.95 for thirty
days’ access. Nelson purchased access and
found pornography on “Lolita World” that in-
volved children ranging from infants to teen-
agers. Further investigation uncovered that
Landslide, Inc. (“Landslide”), provided a com-
puterized credit card verification service used
by various webmasters whose websites con-
tained adult and child pornography. Landslide
offered access under (1) the adult verification
system (“AVS”) and (2) the “KeyZ” system.
AVS subscribers paid $19.95, which pro-
vided six months’ access to all the websites
under the AVS umbrella. The websites ac-
cessed through AVS offered adult pornogra-
phy only.
KeyZ subscribers purchased access to spe-
cific sites at $29.95 per month. Landslide re-
tained a portion of the money collected, and
the webmasters received the rest. Under the
KeyZ system, Nelson found twenty-eight web-
sites depicting child pornography. These web-
sites included Lolita Hardcore/Fucking Little
Kids, Blackcat Lolita, Children of God, Chil-
dren Forced to Porn, Just Grow Up, Child
Rape, Children Playground, Innocent Lolita,
Fantastic Site, and Special Site.
Nelson captured information from some of
the websites by using an Internet card that per-
mitted him to record the information onto a
video cassette recorder. He also used a soft-
ware package called “Web Buddy” to capture
the information from the websites and copy it
onto the hard drive of his computer so he
could view it offline. He determined the lo-
cations of the websites from which the child
pornography originated by using a software
package called “VisualRoute.” The location
of each image of child pornography alleged in
the indictment was traced to an internet ser-
vice provider outside Texas.
The Landslide and AVS homepages dis-

-- 2 of 14 --

3
played banners, or online advertisements with
hyperlinks, alerting potential subscribers to the
availability of child pornography on various
websites. In addition, Landslide offered a free
“adult classified advertisements” section on the
website that showed banners advertising child
pornography. On reviewing the ads, Nelson
found postings by persons wanting to trade
child pornography, to have sexual contact with
children, and to trade KeyZ passwords.
The Reedys were the owners and operators
of Landslide, and Thomas Reedy was its
founder. Janice Reedy held various positions
with the company beginning in January 1998,
including handling its financial transactions.
During an interview with law enforcement
agents, Thomas Reedy admitted that he and
his wife knew some of the websites contained
child pornography and that child pornography
represented thirty to forty percent of his busi-
ness. The Reedys had authored and received
emails indicating that they were aware that
some of the websites on the KeyZ system of-
fered child pornography and that the Reedys
knew the transmission of child pornography
was illegal.
During a search of the Reedys’ residence in
September 1999, law enforcement agents
seized a desktop computer and a notebook
computer. The basis of Count 89 was sev-
enty-one child pornography images from the
desktop computer. The police found three im-
ages of child pornography on the notebook
computer.
Landslide’s gross sales from September
1997 through August 1999 were $9,275,964;
$204,025 was returned to dissatisfied custom-
ers. Landside incurred costs of $6,103,517.
Based on this information, the auditor deter-
mined that Landslide had made a profit of
$2,968,422 and that $1,290,412 of the pro-
ceeds came from the eleven websites named in
the indictment.
II.
The eighty-nine-count superseding indict-
ment charged the Reedys with various offenses
arising from their participation in the transmis-
sion of child pornography over the Internet.
Count 1 charged conspiracy to transport “any
visual depiction” produced through the use of
“a minor engaging in sexually explicit con-
duct,” in violation of § 2252(a)(1) and (b)(1).
Counts 2 through 44 charged the substantive
offenses of transporting and aiding and abet-
ting the transport of visual depictions pro-
duced through the use of minors engaging in
sexually explicit conduct, in violation of
§§ 2252 and 2. Count 45 charged conspiracy
to commit activities relating to material con-
stituting or containing child pornography in
violation of § 2252A(a)(1) and (b)(1). Counts
46 through 88 charged committing activities
relating to material constituting or containing
child pornography and aiding and abetting in
violation of §§ 2252A and 2. Count 89
alleged possession of a computer disk and
computer material containing approximately
fifty images of child pornography produced by
means of a computer using material shipped
and transported in interstate commerce, in
violation of § 2252A, which is part of the
Child Pornography Prevention Act of 1996, 18
U.S.C. § 2251 et seq.
The jury found Thomas Reedy guilty on
counts 1 through 89 and Janice Reedy guilty
on counts 1 through 87. The court sentenced
Thomas Reedy to 180 months’ consecutive
imprisonment on each count, plus three years’
supervised release on each count, to run
concurrently, and a special assessment of
$8,900. His prison term would have equaled

-- 3 of 14 --

4
1,335 years, so the court ordered that he serve
a life sentence.
Janice Reedy received 168 months’
imprisonment on each count, to run
concurrently, plus three years’ supervised
release and a special assessment of $8,700.
Her prison term totals fourteen years.
III.
The Reedys allege that their indictment was
multiplicitous for three reasons: (1) The in-
dictment twice charges the same conduct as
the transportation of materials that sexually ex-
ploit minors in violation of § 2252 and the
transportation of child pornography in
violation of § 2252A. (2) The indictment
alleged duplicative conspiracies to violate each
of the two statutes. (3) The indictment and
the district court incorrectly viewed the
number of pictures, rather than the number of
websites, as the relevant unit of analysis under
§ 2252.
A.
We review issues of multiplicity de novo.
United States v. Dupre, 117 F.3d 810, 818
(5th Cir.1997). “‘Multiplicity’ is the charging
of a single offense in several counts.”
1A CHARLES A. WRIGHT, FEDERAL PRACTICE
AND PROCEDURE § 142, at 7-8 (West 3d ed.
1999) “The chief danger raised by a multi-
plicitous indictment is the possibility that the
defendant will receive more than one sentence
for a single offense.” United States v. Swaim,
757 F.2d 1530, 1537 (5th Cir.1985).
Where overlapping statutory provisions
create a risk of multiplicity, “[t]he test for de-
termining whether the same act or transaction
constitutes two offenses or only one is whether
conviction under each statutory provision re-
quires proof of an additional fact which the
other does not.” United States v. Nguyen, 28
F.3d 477, 482 (5th Cir. 1994) (citing United
States v. Free, 574 F.2d 1221, 1224 (5th
Cir.1978)). Where a multipart transaction rais-
es the prospect of multiplicity under a single
statute, the question becomes “‘whether
separate and distinct prohibited acts, made
punishable by law, have been committed.’”
United States v. Shaid, 730 F.2d 225, 231 (5th
Cir.1984) (quoting Bins v. United States, 331
F.2d 390, 393 (5th Cir.1964)).
B.
We first consider whether the government
properly charged two counts for each image
by charging separate violations of §§ 2252 and
2252A. The government acknowledges that it
could not properly charge a violation of both
statutes for each image but argues that Thom-
as Reedy waived this argument in the district
court. A defendant must challenge the
multiplicity of an indictment before trial or
forfeit the issue. United States v. Soape, 169
F.3d 257, 265-66 (5th Cir. 1999). He may,
however, raise claims about the multiplicity of
sentences for the first time on appeal.1 Thom-
as Reedy’s appellate brief repeatedly
characterizes his challenge as one to the
multiplicitous sentences, which eliminates any
possibility of waiver.2
Thomas Reedy so phrased his challenge in
1 Soape, 169 F.3d at 265-66; United States v.
Cooper, 966 F.2d 936, 940 (5th Cir. 1992). The
defendant may not challenge concurrent sentences
after waiving the multiplicity objection before trial,
but the court imposed Thomas Reedy’s sentences
consecutively. United States v. Galvan, 949 F.2d
777, 781 (5th Cir. 1991).
2 The government does not argue that Janice
Reedy waived challenges to the multiplicity of the
indictment or the multiplicity of the sentence.

-- 4 of 14 --

5
the district court as well. The government
concedes that Janice Reedy raised these
objections at trial. She objected “pursuant to
the previously filed motion to dismiss the
indictment, and . . . that motion alleged that
the indictment itself is multiplicitious.” She
stated that the government responded to the
challenge to the indictment by stating that it
would elect among the charges later, and she
sought to remind the court of that at
sentencing.
Thomas Reedy’s attorney joined in the ar-
gument by referencing the district court’s
scheduling order, which permitted co-
defendants to join in one another’s objections
and motions. Because Thomas Reedy
consistently ratified Janice Reedy’s challenges
based on the multiplicity of the sentence, and
he has presented them on appeal, he has
preserved the argument for our review.
On remand, the district court should resen-
tence for each violation of § 2252 and not
§ 2252A. Section 2252(a) criminalizes the
“transport” of “visual depictions” of “minors
engaging in sexually explicit conduct.”
Sect ion 2252A(a) criminalizes the
transportation or distribution of “child
pornography.” Section 2556(8)(B)-(D)
defines “child pornography” broadly to include
a visual depiction that “appears to be a minor
engaging in sexually explicit conduct,” a
“depiction” “created, adapted, or modified to
[so] appear,” or one advertised as a visual
depiction of a minor engaged in such conduct.
18 U.S.C. § 2256(8)(B)-(D). In Ashcroft v.
Free Speech Coalition, 122 S. Ct. 1389, 1400-
01, 1406 (2002), the Court struck down this
definition of “child pornography” as
overbroad.
Accordingly, the court should resentence
the Reedys without including the substantive
violations of § 2252A.3 The court should not
consider counts 46 to 88, which are
duplicative of the earlier-numbered counts, nor
should it consider count 45, which alleges a
duplicative conspiracy to violate § 2252A.
C.
In determining the sentence,4 the district
court used t he total number of images
appearing on all the websites as the relevant
“unit of prosecution” for determining the num-
ber of counts for violating § 2252. The
Reedys contend that the court should have
used only the number of websites.5 The
government responds that the Reedys should,
theoretically, bear liability for each download
3 By striking down the overbroad portions of the
child pornography definitions, the Court made
§§ 2252 and 2252A indistinguishable. Section
2252 regulates “any visual depiction” if it
“involves the use of a minor engaging in sexually
explicit conduct.” § 2252(a)(1). Section 2252A
regulates “child pornography,” but the only
remaining, constitutional definition of “child
pornography,” 18 U.S.C. § 2256(8)(A), defines it
as a “visual depiction.” The district court should
resentence based on § 2252, to avoid additional is-
sues that might arise under § 2252A. The two
statutes are functionally identical.
4 The government mistakenly asserts that in
their brief on appeal, the Reedys challenge the
validity only of the indictment, not the sentence.
The Reedys plainly challenge both.
5 The Reedys contend that there were 10 web-
sites containing child pornography and that, ac-
cordingly, there should have been only 10 counts
for violation of each of §§ 2252 and 2252A instead
of 43 counts for each section. We leave it to the
district court, on remand, to determine how many
counts should be considered in sentencing, in
accordance with this opinion.

-- 5 of 14 --

6
of each picture from each website on the KeyZ
network.6
To determine whether the Reedys’ conduct
gives rise to multiple convictions or
punishments, we must, therefore, determine
the “allowable unit of prosecution.” United
States v. C.I.T. Credit Corp., 344 U.S. 218,
221 (1952); United States v. Prestenbach, 230
F.3d 780, 782 (5th Cir. 2000). We begin with
the language of § 2252 to determine whether
it precisely delineates the criminal act. United
States v. Dixon, 273 F.3d 636, 642 (5th Cir.
2001), petition for cert. filed (Apr. 3, 2002)
(No. 01-9579).
Section 2252(a) makes it a crime “know-
ingly” to “ship” or “transport” in “interstate
commerce” “any visual depiction” of “a minor
engaging in sexually explicit conduct.” We
have explained the problem posed by the use
of the word “any,” and our method for
resolving it:
Since “any” can mean “one” or “some,”
courts have determined the unit of
prosecution by reference to the conduct
alleged. Courts apply the following
rule: “Whether a transaction results in
the commission of one or more offenses
is determined by whether separate and
distinct acts made punishable by law
have been committed.” The principle
underlying this rule is that the “unit of
prosecution” for a crime is the actus
reus, the physical conduct of the
defendant.
Prestenbach, 230 F.3d at 783.7
The word “transport” is fairly
straightforward,8 but closely examining the
meaning of “visual depiction” only complicates
matters. We start by considering whether a
“visual depiction” is neatly confined to an
individual image or encompasses a broader set
of items, such as books, magazines, movies, or
other collections.
Section 2256 defines a “visual depiction” as
“including any photograph, film, video, pic-
ture, or computer or computer-generated im-
6 As the government acknowledged in response
to questioning at oral argument, its position is that
a new count, potentially carrying an additional
prison term of 15 years, can be added every time
any subscriber downloads an image. Take,
hypothetically, one website with 100 child
pornographic pictures. If each of 100 subscribers
were to download each of the 100 pictures just
once, the defendant could be charged with 10,000
counts, for a potential sentence of 150,000 years.
Such an extreme interpretation of Congressional
intent undermines the reliability and credibility of
the government’s case on appeal.
7 The word “any” has troubled many courts.
E.g., United States v. Esch, 832 F.2d 531, 541-42
& n.9 (10th Cir. 1987). “Any” conveys multiple
meanings about the necessary amount. It
alternately may refer to “one, some, or all
indiscriminately of whatever quantity” or “the
maximum or whole of a number or quantity.”
WEBSTER’S THIRD NEW INTERNATIONAL
UNABRIDGED DICTIONARY 97 (Merriam-Webster
1986).
8 In United States v. Runyan, 290 F.3d 223,
239 & n.11 (5th Cir. 2002), for example, we in-
terpreted “transport” in interstate commerce under
18 U.S.C. § 2251’s jurisdictional requirement to
include the “transmission of material via the In-
ternet.” We interpreted “transport” as an element
of the offense under § 2252A as requiring “some
evidence linking the specific images supporting the
conviction to the Internet.” Id. at 242. Neither
definition adds much to the current inquiry.

-- 6 of 14 --

7
age or picture, whether made or produced by
electronic, mechanical, or other means.” 18
U.S.C. § 2256(5). This list includes both
items that may be classified as a single shot of
a single scene, such as a still photograph, and
series of shots of several scenes or ongoing ac-
tion, such as a film or video. The statute con-
templates “visual depictions” as constituting
both single images and more than one image.
Other portions of § 2252 demonstrate that
Congress recognized that a “visual depiction”
might include one or several images. Section
2252(a)(4)(B) forbids the possession of
“books, magazines, periodicals, films, video
tapes, or other matter which contain any visual
depiction” sent through interstate commerce.9
And § 2252(c)(1) creates an affirmative
defense for persons possessing “less than three
matters containing any visual depiction.”
These references tell us that a “matter” is
larger and inclusive of a “visual depiction,” but
they do not explain the size or inclusiveness of
a “visual depiction.”10 Standing alone, the text
of § 2252 fails to resolve the question, so we
turn to our one precedent interpreting related
issues under that section.11
In United States v. Gallardo, 915 F.2d 149,
150 (5th Cir. 1990), the defendant mailed four
envelopes addressed to four persons in various
locations, and argued that because he mailed
three envelopes at the same time, the court
should consider them as a single count. In a
passage on which both sides focus here, we
held that the three envelopes should count as
three, and only three, counts:
[E]ach separate use of the mail to
transport or ship child pornography
should constitute a separate crime
because it is the act of either
transporting or shipping that is the
9 In the course of resolving a separate statutory
interpretation question, the Eighth Circuit, at least,
has classified a video tape as a “visual depiction”.
United States v. Broyles, 37 F.3d 1314, 1317 (8th
Cir. 1994).
10 The First Circuit has held that a single
negative strip with three undeveloped photos is one
“matter.” United States v. McKelvey, 203 F.3d
66, 71 (1st Cir. 2000). The Second Circuit
invoked the rule of lenity to hold that several in-
dividual loose pictures removed from a magazine
do not count as a “matter.” United States v.
Dauray, 215 F.3d 257, 264-65 (2d Cir. 2000).
Courts have divided over whether individual
graphic computer files count as a “matter.” Com-
pare United States v. Vig, 167 F.3d 443, 448 (8th
(continued...)
10(...continued)
Cir. 1999) (holding individual files count as “other
matter”) with United States v. Lacy, 119 F.3d 742,
748 (9th Cir. 1997) (holding that computer files
are not “other matter,” but a hard drive and floppy
disc are).
11 Other jurisdictions have addressed similar but
not identical questions, and their opinions shed only
limited light on the question before us. E.g.,
United States v. Thompson, 281 F.3d 1088, 1091,
1097-98 (10th Cir. 2002) (interpreting U.S.S.G.
§ 2G2.4(b)(2)’s use of the word “item” to refer to
individual computer files and not discs); United
States v. Matthews, 11 F. Supp. 2d 656, 659 (D.
Md. 1998) (holding that a single email
transmission should establish a single count), aff’d,
209 F.3d 338 (4th Cir. 2000); United States v.
Meyer, 602 F. Supp. 1480, 1481 (S.D. Cal. 1985)
(invoking rule of lenity to hold that a person could
not face two counts for sending and receiving the
same picture); United States v. Labean, 56 M.J.
587, 590 (C.G. Ct. Crim. App. 2001) (holding that
downloading 25 separate pictures from a single
website in 18 minutes established 25 counts).

-- 7 of 14 --

8
central focus of this statute. Gallardo
mailed four separate envelopes
containing child pornography, thus com-
mitting four separate acts of
transporting or shipping. The number of
photographs in each envelope is
irrelevant. In contrast, a defendant
arrested with one binder containing
numerous photographs has committed
only one act of transportation.
Similarly, a single transportation of two
women is but one violation of the Mann
Act.
Id. at 151 (citation omitted).
The government emphasizes that we parsed
the placing of the three envelopes into the
mail. The Reedys highlight that we permitted
only one count for each envelope and labeled
improper an attempt to charge the defendants
for each picture contained in the envelope.
Gallardo is not especially similar to the instant
case, so we take from it only a single pro-
position: Where a defendant has a single
envelope or book or magazine containing
many images of minors engaging in sexual ac-
tivity, the government often should charge
only a single count.
Consider the Reedys’ actions: They
established a security screening device that
aided and abetted the website operators who
purveyed child pornography. The Reedys
chose to bundle their service by website; they
charged for subscriptions to individual web-
sites under the KeyZ plan. As the defendant in
Gallardo chose to collect several pictures in
an envelope, or the publisher of a magazine of
child pornography chooses to collect several
images in a periodical, the Reedys chose to
bundle in this manner. Gallardo cuts slightly
in favor of the Reedys’ interpretation.
We are faced, then, with what to do where,
as here, a criminal statute fails to provide an
answer to a question.12 The Supreme Court
provided the answer almost fifty years ago
when faced with this interpretive dilemma. In
Bell v. United States, 349 U.S. 81, 82 (1955),
the Court considered whether the Mann Act’s
prohibition against knowingly transporting
“any woman or girl” in interstate commerce
for an immoral purpose supported two counts
for transporting two women at the same time
in the same vehicle. The Court reached the
same impasse that we have reached today.
Because “argumentative skill” “could
persuasively and not unreasonably reach”
either interpretation, the Court ruled that the
“ambiguity should be resolved in favor of
lenity,” and the government could charge only
one count. Id. at 83.13 We reach the same
12 The legislative history is not particularly
helpful; neither is a restatement of the statute’s
purpose. Obviously, Congress sought to prevent
the abuse and exploitation of children and to dis-
courage the secondary market that fosters that
abuse. Reciting the purpose of a criminal law,
however, provides no information about the level at
which Congress chose to set the penalties. Pre-
sumably that purpose was not limitless, or
Congress would have established life sentences for
each violation of the statute. Neither the legislative
history nor the purpose is fine-grained enough to
resolve the question before us.
13 We invoke the rule of lenity only where “a
reasonable doubt persists about a statute’s intended
scope even after resort to the language and
structure, legislative history, and motivating poli-
cies of the statute.” Moskal v. United States, 498
U.S. 103, 108 (1990). Despite its status as a tool
of last resort, this principle has a long and
established history in the Supreme Court and this
circuit. Where, after seizing everything from
which aid can be derived, the statute remains am-
(continued...)

-- 8 of 14 --

9
conclusion here and decide that the district
court erred by permitting the prosecution to
group the counts by individual image rather
than website.14
IV.
The Reedys raise two challenges to the jury
instructions: (1) The instructions reflected the
multiplicitous counts and biased the jury by
making the defendants appear twice as guilty.
(2) Thomas Reedy argues that the court
erroneously instructed the jury that it only
need find he possessed one “visual depiction”
under count 89. We review each in turn.
A.
We review challenges to jury instructions
for abuse of discretion. United States v.
Young, 282 F.3d 349, 353 (5th Cir. 2002). A
conviction will be reversed only if the charge
“as a whole leaves us with substantial and in-
eradicable doubt as to whether the jury has
been properly guided in its deliberations.”
Bender v. Brumley, 1 F.3d 271, 276 (5th Cir.
1993) (citation and internal quotation
omitted). Even if the instructions are
erroneous, we will not reverse if we determine,
“based upon the entire record, that the
challenged instruction could not have affected
the outcome of the case.” Johnson v. Sawyer,
120 F.3d 1307, 1315 (5th Cir.1997).
B.
The Reedys argue that including
instructions on multiplicitous counts allowed
the jury to find them guilty on counts deemed
unconstitutional under the Double Jeopardy
Clause of the Fifth Amendment. The Reedys
reason that these instructions prejudiced the
jury on all counts included in the indictment by
making the Reedys “appear two times guiltier,
with twice the opportunity for the jury to find
guilt.”
The government argues that dismissing the
multiplicitous counts would render any jury
error harmless, because the court expressly
instructed the jury to consider guilt on each
count separately. The relevant jury
instructions provided:
A separate crime is charged in each
count of the indictment. Each count and
the evidence pertaining to that count
should be considered separately and in-
dividually. The fact that you may find
the defendant under consideration guilty
or not guilty as to one or more counts
should not control your verdict as to any
other count.
13(...continued)
biguous, the rule of lenity may be applied. Adamo
Wrecking Co. v. United States, 434 U.S. 275,
284-285 (1978) (“[W]here there is ambiguity in a
criminal statute, doubts are resolved in favor of the
defendant.”); Rewis v. United States, 401 U.S.
808, 812, (1971) (“[A]mbiguity concerning the
ambit of criminal statutes should be resolved in
favor of lenity.”); Prestenbach, 230 F.3d at 784
n.23 (“If uncertainty remains after our
interpretation of the text and its underlying
policies, the rule of lenity requires a narrow
construction of the law.”).
14 We emphasize that this case is limited to a
security screening system that aggregates websites
containing child pornography. We do not intimate
a particular result where a website operator uses a
single site to aggregate and distribute individual
pictures. We are particularly loath so to hint, be-
cause child pornographers merely could change
their distribution methods if we announced a
bright-line rule. We conclude only, on the facts of
this unique case involving a middleman and se-
curity screening system, that the court cannot
sentence the Reedys based on each individual
picture posted.

-- 9 of 14 --

10
Juries are presumed to follow instructions.
See, e.g., Richardson v. Marsh, 481 U.S. 200,
206 (1987) (collecting cases). The above in-
struction should have prevented the
multiplicative indictment from influencing the
verdict on the valid counts. Id.; see also
Dixon; United States v. Kimbrough, 69 F.3d
723, 732 (5th Cir. 1995). A remand for
resentencing will cure all error.
C.
Thomas Reedy argues that the jury
instruction on count 89 permitted the jury to
convict on findings shy of what §
2252A(a)(5)(b) requires.15 The instruction on
count 89 stated that the jury had to find that
“the defendant under consideration knowingly
possessed at least one visual depiction
containing an image or images of child
pornography.” Thomas Reedy argues that §
2252A(d), which creates an affirmative
defense to a charge of violating § 2252A-
(a)(5), requires finding that he possessed at
least three images of child pornography.
According to Thomas Reedy, he possessed
only one itemSSa computer disc drive.
Section 2252A(d) expressly states,
however, that it is an affirmative defense. See
United States v. Henriques, 234 F.3d 263, 264
n.2 (5th Cir. 2000) (stating that § 2252A(d)
“gives the defendant an affirmative defense
upon a showing that the defendant possessed
fewer than three images”). Reedy bore the
burden of raising and pleading the affirmative
defense, United States v. Elorduy, 612 F.2d
986, 900 (5th Cir. 1980), but failed to raise the
defense or object to the instruction.16 The
court did not have an obligation to instruct on
a non-element of the crime or on an affirmative
defense never presented.
V.
The Reedys raise three objections to the
sentence: (1) The relevant conduct
calculations erroneously included revenue
from both child pornography and (legal) adult
pornography. (2) Thomas Reedy did not play
a leadership role in the offense. (3) The court
failed to resolve all the sentencing objections.
A.
We review the application of sentencing
guidlelines de novo but findings of fact for
clear error. United States v. Taylor, 277 F.3d
721, 723 (5th Cir. 2001). A factual finding is
not clearly erroneous if it is plausible in light of
the record as a whole. United States v. Myers,
198 F.3d 160, 164 (5th Cir. 1999). We review
the application of FED. R. CRIM. P. 32(c) de
novo. United States v. Medina, 161 F.3d 867,
874 (5th Cir. 1998).
B.
The Reedys contend that the auditor
incorrectly established their pecuniary gain as
$5,792,475.15, because this figure includes
money generated from legal pornographic
websites. The Reedys argue that only
$1,290,412, which was earned from the web-
sites contained in the indictment, should be
considered for establishing the sentencing en-
15 We do not find it necessary to vacate and
remand under this count for possession under
§ 2252A. In Free Speech Coalition, 122 S. Ct. at
1406, the Court merely restricted convictions under
§ 2252A to those the government previously could
have obtained under § 2252.
16 “No party may assign as error any portion of
the charge or omission therefrom unless the party
objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which that
party objects and the grounds of the objection.”
FED. R. CRIM. P. 30.

-- 10 of 14 --

11
hancement under U.S.S.G. § 2F1.1(b)(1)(O).
The government responds the district court did
not include revenues from the adult
pornography websites in its calculation but
merely considered revenues from other child
pornography sites.
Relevant conduct for which a defendant
was not charged or convicted may be
considered in determining the guideline range.
See United States v. Taplette, 872 F.2d 101,
104 (5th Cir. 1989). According to U.S.S.G.
§ 1B1.3(a)(2), relevant conduct may be based
on “all acts and omissions . . . that were part of
the same course of conduct or common
scheme or plan as to the offense of
conviction.”
The $5,792,475.15 represented the total
amount of pecuniary gain from all the child
pornography websites for which Landslide
operated its credit card verification system.
The auditor testified that his analysis of
Landslide's financial records showed
$1,290,412 as the total proceeds from the
websites named in the indictment. During the
sentencing process, however, a second
government auditor conducted an audit of
KeyZ’s financial records and determined that
Landslide had earned $5,792,475.15 from all
the websites containing child pornography for
which it provided a credit card verification
system. The court properly considered those
sums when establishing the enhancement.
C.
Thomas Reedy argues that the district court
wrongfully found him to be a leader/organizer
of criminal activity, resulting in a four-level
enhancement under U.S.S.G. § 3B1.1(a).
Reedy contends that he was only a
“middleman,” so his total offense level under
U.S.S.G. § 3B1.1(b) should be decreased by
one offense level. The government answers
that Reedy qualified because his criminal
enterprise involved more than five participants.
Under § 3B1.1(a), the offense level may be
increased by four “if the defendant was an or-
ganizer or leader of a criminal activity that
involved five or more participants or was
otherwise extensive.” According to
application note 4, the sentencing court should
consider
the exercise of decision making
authority, the nature of the participation
in the commission of the offense, the
recruitment of accomplices, the claimed
right to a larger share of the fruits of the
crime, the degree of participation in
planning or organizing the offense, the
nature and scope of the illegal activity,
and the degree of control and authority
exercise over others.
U.S.S.G. § 3B1.1, commen. (n. 4).
Reedy quotes Assistant United States At-
torney Terri Moore’s opening statement to the
jury that “. . . subscribers or users . . . needed
a middleman, that's where [Appellants] come
in. They are a middleman.” Marshall also tes-
tified that “on the Internet, there’s a large
group of customers, there’s a large group of
child pornography sites, and in the middle is
landslide/keyz.com basically being the
gatekeeper between those two components.”
The government notes that under
§ 3B1.1(a), a defendant should receive a four-
level enhancement if he was an organizer or
leader of a criminal activity that involved five
or more participants or was otherwise
extensive. The presentence report (“PSR”)
sets forth the following in support of the

-- 11 of 14 --

12
recommendation that Thomas Reedy be
considered a leader/organizer:
[T]his case involved a sophisticated, in-
ternational child pornography scheme
which earned in excess of $9,000,000.
The superseding Indictment in this case
identified five participants in the
conspiracy, including [Thomas Reedy],
Janice Reedy, R.W. Kusuma, Boris
Greenberg, and Hanny Ingganata . . . .
[Thomas Reedy] held the position of
president within his company and
directed the employees identified in
paragraph 36. He also developed and
implemented the services used to mass-
market the child pornography. For
these reasons, the 4 level enhancement
for being an organizer or leader of a
criminal activity that involved five or
more participants or was otherwise
extensive is warranted in this case.
No one challenges the following facts:
(1) The criminal activity involved at least five
knowing participants. (2) The crime involved
the transportation, for remuneration, of child
pornography all over the world via the Inter-
net. (3) Thomas Reedy ran the operation: He
developed and implemented the KeyZ service
for the purpose of mass marketing child
pornography to interested subscribers; he
actively recruited Webmasters to utilize KeyZ
by promising increased profits by tracking
subscribers interested in child pornography; if
a webmaster failed to follow the rules
established by Thomas Reedy for KeyZ, Reedy
determined whether the Webmaster would be
cut off from the system. The district court had
ample evidence to dub Reedy a leader or
organizer.
D.
The Reedys argue that the district court er-
roneously permitted the presentation of
additional evidence. They contend that their
counsel “meticulously delineated additional
objections to the PSR as having significant
impact” but that the court “blatantly skirted
past the specific objections without expressly
ruling on them nor making finding of fact and
conclusions of law in accordance with Rule
32(c)(1) of the Federal Rules of Criminal
Procedure.” Significantly, they do not explain
what objections were made during sentencing.
Thomas Reedy made two objections to the
PSR: (1) to the amount of revenue or
pecuniary gain and (2) to the four-level
increase for his management role in the
offense. Janice Reedy objected to the revenue
calculations, to a two-level increase for
obstruction of justice, and to the denial of a re-
duction for her minimal role in the offense. In
each of the sentencing hearings, the court ei-
ther overruled or sustained every objection
made by the Reedys and adopted the factual
findings in the PSR. The court sustained
Janice Reedy’s objection to the obstruction of
justice two-level increase and granted a four-
level decrease for her minimal role in the
offense.
After overruling Janice Reedy’s objection
to the pecuniary gain calculation, the court
asked her whether she had any objection or
evidence to offer regarding the court’s
tentative findings. She answered in the
negative. Therefore, the court adopted the
statements of fact made in the PSR as its final
findings of fact, subject to and including
changes and qualifications made by the court
in response to the objections as announced.
We cannot identify any issues the court failed
to resolve at sentencing.

-- 12 of 14 --

13
VI.
The Reedys aver that they should receive a
new trial for two reasons: (1) They have
uncovered evidence that impeaches a
prosecution witness. (2) The cumulative
errors in the indictment and trial require a new
adjudication of guilt. We review for abuse of
discretion the denial of a new trial based on
newly discovered evidence. United States v.
Metz, 652 F.2d 478, 479 (5th Cir. Unit A Aug.
1981).17
A.
After trial and before sentencing, the
government discovered that Marshall, its
expert, had failed to disclose that he had been
asked to resign from the Fort Worth Police
Department because of misconduct, and
Thomas Reedy’s trial counsel had represented
him in an unrelated proceeding years before
the instant offense. The government notified
trial counsel, who claimed no recollection of
having represented Marshall. The Reedys’
counsel then filed a Motion To File Motion to
Withdraw Under Seal and Counsel’s Motion
To Withdraw and Request To Present
Supporting Evidence Ex Parte. The court
granted the request to withdraw.
The new defense counsel filed motions for
new trial on the ground that such newly
discovered evidence could have been used to
impeach Marshall and demonstrated an
irreconcilable conflict of interest between
Reedy and his trial counsel. The court denied
both motions.
Marshall was the Chief Investigator for the
Internet Bureau of the Attorney General for
the State of Texas during the trial. Marshall
testified about his background and
employment as a police officer for the City of
Fort Worth in the early 1980’s. He also
testified that he suggested that Nelson use the
software program called Web Buddy to record
the child pornography websites. In addition,
Marshall testified that he suggested, installed,
and helped configure the software program
called VisualRoute and the device used to
videotape the child pornography images from
the Internet.
Marshall explained how VisualRoute
worked and how the origination points for the
websites demonstrated an impact on interstate
and foreign commerce. Thus, most of
Marshall’s testimony centered on explaining
the Internet. On cross-examination, Thomas
Reedy’s defense counsel stated to Marshall:
“[A]pparently we ran into one another when I
was a prosecutor or something, because you
recall me.” Marshall’s response was “Yes, sir,
I do.” Marshall’s direct and redirect testimony
covered approximately 13.5 pages of the rec-
ord, and his cross-examination testimony cov-
ered almost 35 pages. The Reedys claim that
the evidence on the witness’s relationship with
their attorney should have been further
developed.
For a new trial on the basis of newly
discovered evidence, a defendant must
demonstrate that
(1) the evidence is newly discovered and
was unknown to the defendant at the
time of trial; (2) failure to detect the ev-
idence was not due to a lack of diligence
by the defendant; (3) the evidence is not
merely cumulative or impeaching; (4)
the evidence is material; and (5) the
evidence introduced at a new trial would
17 Refusal of a hearing on a motion for new trial
is also reviewed for abuse of discretion. Metz, 652
F.2d at 481.

-- 13 of 14 --

14
probably produce an acquittal.
United States v. Lowder, 148 F.3d 548, 551
(5th Cir. 1998) (citation omitted). The Reedys
have not pointed to any evidence that they
would be likely to win an acquittal at a new
trial. Marshall’s testimony was generic, expert
testimony, and the government could always
replace him with another expert. He had to
testify only about the operation of the Internet,
not the age of the girls, because the Reedys
conceded, in a police interview, knowledge of
illegal child pornography on the websites.
The Reedys do not point to portions of
Marshall’s testimony that were false, biased, or
even material. Nor do they provide any evi-
dence that their counsel was biased by his past
representation of Marshall. They do not allege
that he failed to cross-examine Marshall
thoroughly. And because Marshall said little
of significance, a stronger cross-examination
would not have led to an acquittal.
B.
The Reedys argue that the cumulative er-
rors throughout their trial warrant a new trial.
We have not found quite as many errors as the
Reedys allegedSSin fact, we reverse only on
multiplicity grounds. “Although the
‘cumulative effect of several incidents . . . may
require reversal, even though no single one . .
. co nsidered alone would warrant such a
result,’ this situation is a rarity.” United States
v. Lindell, 881 F.2d 1313, 1327 (5th Cir.
1989) (internal citation omitted). The instant
case does not qualify.
The judgments of sentence are VACATED,
and this matter is REMANDED for resentenc-
ing.

-- 14 of 14 --