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Date: 10-11-2021

Case Style:

United States of America v. BRANDON ROYCE PHILLIPS

Case Number: 18-11737

Judge: Britt Cagle Grant


Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

Atlanta, Georgia - Criminal defense Lawyer Directory


Atlanta, Georgia - Criminal defense lawyer represented defendant with three crimes, each involving sexual misconduct with a minor.

A boy we will call N.M. moved to Florida in August 2016, and turned to
social media to “try to make friends.” On one site, he met someone with the
username “Owls.” The boy accurately identified himself as a 14-year-old boy in
his profile; Owls identified herself as a 17-year-old girl. Owls asked the boy to
message her on Kik, another social media site, at the username “katie.davis840.”
The boy agreed, and created a Kik account where he found and began messaging
katie.davis840. According to “Katie,” she was 18 years old, and her profile
included a picture of a young female.
Soon after “Katie” and the boy began messaging on Kik, she started
speaking to him in a sexually explicit manner. “Katie” sent him videos of a female
masturbating, and requested that he send videos of himself masturbating in return.
The boy complied with her requests, making and sending about 30 sexually
explicit videos during the two months they communicated.
Toward the end of those two months, the boy’s family noticed that he was
acting strangely with his cell phone. His cousin took the phone to look through it,
and found “disturbing” videos the boy had made. When he alerted the boy’s
grandmother she was horrified, and told the boy’s father about the phone’s
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contents. The family wasted no time, and went to the Clay County Sheriff’s Office
the next day to report what they had found.
Law enforcement officers interviewed N.M. and forensically extracted the
contents of his cell phone. The extraction turned up two communications with
“Katie.” The boy had apparently deleted—at “Katie’s” request—the rest of their
messages. The extraction also uncovered three videos of a female masturbating
and 32 videos of the boy engaging in sexually explicit conduct.
Officers then subpoenaed Kik for information on the “Katie Davis” profile;
the subpoena revealed the IP address used by the account. Law enforcement traced
that IP address to a physical address in Panama City Beach. When they executed a
search warrant for the residence there, officers found Phillips and seized his phone
on the scene. After obtaining a separate warrant for the phone, the officers sought
a detailed forensic examination. That examination revealed that the katie.davis840
Kik account, along with the email registered with that account, was on Phillips’s
phone. The examination revealed no pictures, videos, or messages to or from
N.M.—but it did reveal a contact list that included the boy’s Kik profile, indicating
that N.M. and “Katie” had chatted.
A grand jury indicted Phillips on three counts, charging that he: (1) “did
knowingly and intentionally use, persuade, induce, and entice a minor to engage in
sexually explicit conduct for the purpose of producing a visual depiction of such
conduct,” in violation of 18 U.S.C. § 2251(a) and (e); (2) “did knowingly receive,
and attempt to receive, material containing child pornography,” in violation of 18
U.S.C. § 2252A(a)(2) and (b)(1); and (3) “did knowingly possess, and attempt to
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possess, material containing child pornography,” in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2).
At trial, Phillips testified that he was innocently “role playing” when he
posed as a 17- or 18-year-old female on Kik. His practice, he said, was to send
videos of females masturbating in hopes that the recipient would “send something
back.” He admitted that he knowingly asked for sexually explicit videos and that
he knowingly caused them to be made, but denied having any knowledge that his
targets were under the age of 18.
Phillips also admitted to chatting with N.M. on Kik; in fact, he admitted that
he asked the boy to make and send videos. He claimed, however, that he did not
remember or recognize the sexually explicit videos of N.M. that the government
entered into evidence. He also disputed that he knew the boy was a minor when
they chatted.
After Phillips rested his case, the district court conducted a charge
conference. It explained that, among other things, it intended to instruct the jury
that the government need not prove that Phillips knew the age of the person in the
video in order for him to be convicted on Count I. Phillips objected; he pointed out
that although the statute he was charged with violating, § 2251(a), did not include
the word “knowingly,” Count I of the indictment charged him with “knowingly and
intentionally” using, persuading, inducing, and enticing a minor to engage in
sexually explicit conduct for the purpose of producing visual depictions. He
argued that the way the indictment was worded meant that this scienter
requirement necessarily applied to every element of the crime. Because he had
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been relying on the indictment, he said, the jury instruction needed to affirm that
he was guilty only if he knew the victim was a minor. But the government argued,
and the district court agreed, that the words “knowingly and intentionally” in the
indictment modified only the acts barred in the statute, and thus did not require that
Phillips know the victim’s age. There was no dispute about the scienter
requirements for Count II and Count III.
In keeping with its conclusion, the court instructed the jury that Phillips
could only be found guilty on Count I if he caused a person under the age of 18 to
engage in sexually explicit conduct, if he did so for the purpose of having a video
made of that conduct, and if the video had a sufficient connection to interstate
commerce. The court added that the government did not need to prove that
Phillips knew N.M. was under 18, but it did need to show that Phillips had a
“definite aim” of causing the boy to engage in sexually explicit conduct and video
himself engaging in that conduct. The jury found Phillips guilty on all three
This appeal followed.
We review whether a district court’s jury instructions constructively
amended the indictment de novo. United States v. Gutierrez, 745 F.3d 463, 473
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(11th Cir. 2014). We review issues not raised before the district court for plain
error. United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009).
A defendant can only be convicted of a crime charged in an indictment.
This is a “fundamental principle,” one based in the Fifth Amendment’s grand jury
guarantee. United States v. Keller, 916 F.2d 628, 633 (11th Cir. 1990). It would
indeed be “fundamentally unfair to convict a defendant on charges of which he had
no notice.” Id. That’s why the district court cannot “constructively amend” an
indictment by changing the essential elements of a charged offense “to broaden the
possible bases for conviction beyond what is contained in the indictment.” United
States v. Madden, 733 F.3d 1314, 1318 (11th Cir. 2013) (quoting Keller, 916 F.2d
at 634).
Phillips contends that the district court violated his Fifth Amendment rights
when it instructed the jury that it need not find that he knew his victim’s age to find
him guilty. He maintains that knowledge of his victim’s age was an element of his
indictment, so the district court’s instruction impermissibly amended the
indictment when it broadened the potential bases for conviction. But just because
the indictment included the phrase “knowingly and intentionally” does not mean
that the government charged Phillips with knowing his victim’s age. Section
2251(a) does not require knowledge of age; his indictment, read in light of the
statute, did not either. And because Phillips’s indictment did not charge him with
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knowing his victim’s age, the district court’s jury instruction amended nothing at
When interpreting indictments in other contexts, we have said that we read
them “as a whole” and give them a “common sense construction.” United States v.
Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009) (quoting United States v. Gold, 743
F.2d 800, 813 (11th Cir. 1984)). In doing so, we look to “practical, not technical,
considerations”—including the elements of the statutory offense. Gold, 743 F.2d
at 812 (quotation omitted); see also United States v. Amede, 977 F.3d 1086, 1100
(11th Cir. 2020).
We clarified in a recent case, United States v. Amede, that language in an
indictment that goes beyond what the statute requires ordinarily does not become
part of the charged crime. 977 F.3d at 1100. In fact, a district court can ignore
parts of the indictment unnecessary to and independent of the statutory offense,
including language that purports to require a higher mens rea than the statute. Id.;
see also United States v. Miller, 471 U.S. 130, 136 (1985). In Amede, for example,
the indictment stated that the defendant “willfully” committed a crime. 977 F.3d at
1098. Willfulness was not an element of the relevant statutory offenses. Id. at
1099. Noting that, we concluded that the indictment’s inclusion of the word
“willfully” was “mere surplusage” that a court could delete without error. Id. at
1100. So when the district court omitted the word “willfully” from the jury
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instructions, it did not constructively amend the indictment—neither the indictment
nor the statute required this element to convict. Id.
The same is true here. To start, knowledge of a victim’s age is not an
element of the offenses in § 2251. Period. United States v. Deverso, 518 F.3d
1250, 1257 (11th Cir. 2008). Given that, the government did not need to prove that
Phillips knew his victim’s age to obtain a conviction under § 2251(a). Amede, 977
F.3d at 1100. As we just explained, an extra mens rea term in an indictment
ordinarily does not become part of the charged crime, and can be ignored without
error. Id.
In fact, we have already considered—and rejected—an argument much like
the one raised here. In Deverso, the government charged that the defendant
“knowingly” violated § 2251. 518 F.3d at 1257. Because of that, the defendant
contended that he was entitled to argue to the jury that he was mistaken about the
age of his victim. Id. We rejected his argument, explaining that “Congress defines
the elements of an offense, not the charging document.” Id. at 1258 n.2. The
addition of the word “knowingly” to an indictment charging a violation of § 2251
does not create a new element of the offense. Id.
Still, Phillips insists that the words “knowingly and intentionally” played
such an important role in his indictment that they could not be deleted from the
To support his argument, Phillips leans most heavily on a case called
United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995). There, this Circuit
1 It is not entirely clear how the word “intentionally” could relate to the victim’s age, and Phillips
offers no suggestion on that front.
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determined that the district court constructively amended an indictment when it
redacted the word “willfully” from the jury instructions, even though willfulness
was not an element of the charged offense. Id. at 1120–21. Phillips says
Cancelliere binds us here, and must mean that the district court’s omission of
“knowingly and intentionally” from the jury instruction was a constructive
amendment too.
But that’s not so. To begin, Cancelliere itself is clear that “mere surplusage
may be deleted from an indictment without error.” Id. at 1121. And to the extent
that “knowingly and intentionally” could be read to modify the victim’s age, that
would be surplusage—knowledge of age is not part of the statutory offense. See,
e.g., United States v. Ward, 486 F.3d 1212, 1227 (11th Cir. 2007) (“It is not an
amendment to a charge to ‘drop from an indictment those allegations that are
unnecessary to an offense that is clearly contained within the indictment.’”
(alteration adopted) (quoting Miller, 471 U.S. at 144)).
In any event, we have since clarified that only the “unique circumstances of
defendant Cancelliere’s trial made the inclusion of ‘willfully’ in the indictment” a
problem. Amede, 977 F.3d at 1101. In Cancelliere, the jury was instructed—
before trial—that to get a conviction the government needed to prove that the
defendant acted willfully. 69 F.3d at 1121. With that in mind, Cancelliere focused
his trial defense on proving that he did not act willfully. Id. at 1122. Yet once
Cancelliere had rested his case, the court granted a motion by the government to
redact the word “willfully” from the jury instructions. Id. at 1119. So the jury—
which had first been told that willfulness was required—was newly instructed that
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it could find the defendant guilty even if he did not act willfully. Id. at 1121. That
shift, our Circuit found, impermissibly broadened the scope of Cancelliere’s
indictment. Id. at 1122.
But in Amede, “[n]othing like that happened.” 977 F.3d at 1101. Amede,
unlike Cancelliere, knew the jury would not be instructed on a willfulness
requirement; the government moved to delete the willfulness requirement from the
jury instructions before the trial began, and the preliminary instructions to the jury
did not include that requirement. Id. So the jury was never instructed that
“willfully” was a required state of mind; in fact, the jury received the same
instruction after the evidence closed that it had before trial. Id. Though Amede
rested his defense on his alleged lack of willfulness, he did so knowing that the
jury would not be instructed on a willfulness requirement. Id. For those reasons,
we concluded that the district court did not constructively amend the indictment
when it omitted the word “willfully” from the jury instructions. Id.
This case is like Amede, not Cancelliere. To start, unlike in Cancelliere, the
jury was never instructed, before or after trial, that it needed to find knowledge of
age in order to find Phillips guilty. In fact, when summarizing the indictment to
the jury before the trial even began, the district court left out the words “knowingly
and intentionally” from the first count. That omission showed Phillips from the
start that the jury would not be instructed on a knowledge of age requirement. And
the jury received a very similar instruction once the evidence closed—that to
convict, Phillips need not know his victim’s age. Phillips had no reason to think
that the jury would be instructed otherwise. This case, like Amede, falls outside the
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“unique circumstances” that made the inclusion of “willfully” more than mere
surplusage in Cancelliere. Amede, 977 F.3d at 1101.
Phillips also argues that his conviction for knowingly possessing child
pornography violates the Double Jeopardy Clause. He contends that possessing
child pornography is a lesser-included offense of receiving it, so his conviction and
sentence for both violated the Double Jeopardy Clause. Because Phillips never
made this argument to the district court, we review only for plain error. Bobb, 577
F.3d at 1371. We “will affirm the district court unless: (1) there was an error in the
district court proceedings; (2) the error was plain; and (3) the error affected the
defendant’s substantial rights.” Id. If those conditions are met, we may exercise
our discretion to vacate the conviction “if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
Even under that tough standard, Phillips’s double jeopardy challenge
survives. The Fifth Amendment’s Double Jeopardy Clause guarantees that no
person shall “be subject for the same offence to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. That means that the federal government cannot
punish someone more than once for the same offense. Bobb, 577 F.3d at 1371. So
when “one act is a lesser included offense of the other,” a defendant generally
cannot be punished for both—at least when the two offenses arise out of the same
incident. Id.
Count II and Count III of Phillips’s indictment charged him, respectively,
with knowingly receiving and attempting to receive material containing child
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pornography and with knowingly possessing and attempting to possess material
containing child pornography. This Circuit has already held that possessing child
pornography is a lesser-included offense of receiving it. Id. at 1374–75. So if
Phillips’s convictions for both crimes arose out of the same incident, it was error to
punish him for both. Id. at 1375.
Answering that question is easy; indeed, the government itself concedes that
it was error to convict Phillips under both counts here. Both offenses involved the
same conduct from the same day, so punishing Phillips for both violated the
Double Jeopardy Clause. Moreover, this error seriously affected the fairness of the
district court’s proceedings; a second conviction for the same crime “has potential
adverse collateral consequences” that we may not ignore. Ball v. United States,
470 U.S. 856, 865 (1985). When a defendant has been improperly convicted for
the same offense under two different counts, “the only remedy” available is for the
court “to exercise its discretion” and “vacate one of the underlying convictions.”
Bobb, 577 F.3d at 1372 (quoting Ball, 470 U.S. at 864). Because the second
conviction was an impermissible punishment, we vacate Phillips’s conviction on
Count III for knowingly possessing child pornography.
* * *
Neither § 2251(a) nor the indictment required the government to prove that
Phillips knew N.M.’s age in order to convict on Count I. Because the jury
instruction was both a correct statement of the law and a correct statement of the
charge, the district court did not constructively amend his indictment. But it was
error to convict Phillips of both possession and receipt of child pornography; a
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defendant cannot be punished twice for the same crime.

Outcome: We therefore AFFIRM Phillips’s convictions on Count I and Count II, VACATE his conviction on Count III, and REMAND to the district court for resentencing

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