No. 17-2157 ___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Kevin Timothy Morrissey

lllllllllllllllllllll Defendant - Appellant ____________

Appeal from United States District Court for the Southern District of Iowa - Council Bluffs ____________

Submitted: January 12, 2018 Filed: June 29, 2018 ____________ Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges. ____________ SHEPHERD, Circuit Judge.

Following a jury trial, Kevin Timothy Morrissey was convicted of one count of possession of child pornography under 18 U.S.C. § 2252(a)(4)(B), (b)(2) and one count of receipt of child pornography under 18 U.S.C. § 2252(a)(2), (b)(1). He appeals both convictions. We affirm the receipt conviction, but remand to the district court with instructions to vacate the lesser-included possession conviction because the district court failed to instruct the jury that it could not convict Morrissey for both receipt and possession based on the same facts.

I. Background

In July 2013, Morrissey was sentenced in Washington state court to 34 months imprisonment and 36 months of supervised release for possession of child pornography. After he was released in May 2014, he moved to Iowa in September 2014, and his supervision was transferred there. Under his terms of supervision, Morrissey was prohibited from accessing the Internet and possessing devices that could access the Internet. On January 7, 2016, probation officers conducted a home visit at Morrissey’s residence in Oakland, Iowa, where they discovered an active wireless hotspot and a Dell laptop computer. Examination of the Dell laptop revealed 50 images and one video (collectively “files”) that Digital Forensics Examiner Anthony Kava believed to be child pornography, as well as a web browser history indicative of searches for child pornography. Officers obtained a search warrant for Morrissey’s residence and seized hard drives from an outbuilding on the property. One was a Seagate hard drive containing 10 images of suspected child pornography.

A grand jury in the Southern District of Iowa indicted Morrissey on one count of possession of child pornography and one count of receipt of child pornography. At Morrissey’s jury trial, Kava testified as to the files recovered from the Dell laptop and Seagate hard drive, and the government introduced into evidence—without objection—a spreadsheet Kava created listing the files he believed to be child pornography. The spreadsheet also indicated which files had been previously identified as child pornography by the National Center for Missing and Exploited Children (“NCMEC”).1 In addition, the government introduced—again, without

1 NCMEC is a nonprofit whose mission is “to help find missing children, reduce child sexual exploitation, and prevent child victimization.” One of the services

-2- objection—12 images and one video of suspected child pornography from the Dell laptop and 10 images from the Seagate hard drive. Six of the hard drive images had been previously identified by NCMEC as child pornography. Two FBI agents also testified, based on their own investigations, that two of those six images were child pornography.

The jury was instructed that in order to convict Morrissey for receipt of child pornography, it must first find “that from an unknown date, but at least as early as May of 2015, continuing up to and including January of 2016, [