United States v. Garry David Gallardo, 915 F.2d 149 (5th Cir. 1990). · Go Syfert
United States v. Garry David Gallardo, 915 F.2d 149 (5th Cir. 1990). Cases Citing This Book View Copy Cite
65 citation events (51 in the last 25 years) across 12 distinct courts.
Strongest positive: UNITED STATES OF AMERICA v. TERRY BURTON KIMBROUGH
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
examined Cited as authority (quoted) UNITED STATES OF AMERICA v. TERRY BURTON KIMBROUGH
unknown court · signal: see · quote attribution · 1 verbatim quote · confidence high
with respect to the child pornography statute, each 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 central focus of this statute.
discussed Cited as authority (rule) United States v. Sarabia
5th Cir. · 2021 · signal: cf. · confidence medium
See id. (citing United States v. Berry, 977 F.2d 915, 920 (5th Cir. 1992)). 10 Case: 20-50438 Document: 00515994458 Page: 11 Date Filed: 08/25/2021 No. 20-50438 possessed different depictions of child pornography at different times, the offenses did not involve the ‘same act or transaction’ and so were not based on the same underlying conduct” (quoting Blockburger, 284 U.S. at 304 )); cf. United States v. Gallardo, 915 F.2d 149, 151 (5th Cir. 1990) (holding that mailing four child-pornography photographs in separate envelopes at the same time could be punishable by four separate counts b…
discussed Cited as authority (rule) United States v. Richards (2×)
6th Cir. · 2011 · confidence medium
Cf. United States v. Hinkeldey, 626 F.3d 1010, 1012-14 (8th Cir.2010) (holding that the defendant's rights under the Double Jeopardy Clause were not violated by the district court's refusal to treat the six counts of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) as one for sentencing purposes, where the indictment *548 charged one possession count each for images stored on his computer, zip drive, and four computer disks); United States v. Schales, 546 F.3d 965, 979 (9th Cir.2008) ("[W]here a defendant has stored sexually explicit images in separate mediums, the government …
discussed Cited as authority (rule) United States v. Christie
D.N.J. · 2008 · confidence medium
The court explained that in those circumstances, “each separate receipt of child pornography violates the statute” and “each separate use of the mail to transport or ship child pornography should constitute a separate crime.” Id. (citing United States v. Buchanan, 485 F.3d 274, 279-82 (5th Cir.2007); United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990)).
discussed Cited as authority (rule) United States v. Planck (2×)
5th Cir. · 2007 · signal: cf. · confidence medium
Id. at 279-82 ; cf. United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990) (each separate use of the mail to transport or ship child pornography should constitute a separate crime).
discussed Cited as authority (rule) United States v. Thomas Reedy and Janice Reedy (2×)
5th Cir. · 2002 · confidence medium
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 prec…
discussed Cited as authority (rule) United States v. Matthews
D. Maryland · 1998 · confidence medium
In U.S. v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990), cert. denied, 498 U.S. 1038 , 111 S.Ct. 707 , 112 L.Ed.2d 696 (1991), the Fifth Circuit held that it is the act of transporting images that is the focus of 18 U.S.C. § 2252 .
discussed Cited as authority (rule) United States v. Steven M. Gardner, United States of America v. Edward L. Morris
8th Cir. · 1995 · confidence medium
Cf. United States v. Easley, 927 F.2d 1442, 1451-52 (8th Cir.) (successive prosecutions involving mailings of obscene materials at different times are legally distinct), cert. denied, 502 U.S. 868 , 112 S.Ct. 199 , 116 L.Ed.2d 158 (1991); United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990) (per curiam) (multiple convictions for temporally indistinct mailings of child pornography affirmed through com *86 parison to mail fraud statute), cert. denied, 498 U.S. 1038 , 111 S.Ct. 707 , 112 L.Ed.2d 696 (1991).
discussed Cited as authority (rule) United States v. John Anthony Cipollone (2×) also: Cited "see"
9th Cir. · 1991 · confidence medium
“With respect to the child pornography statute, each 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 central focus of this statute.” 1 United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990) (emphasis in original).
discussed Cited "see" Erick Lawson v. William Stephens
5th Cir. · 2018 · signal: see · confidence high
See United States v. Gallardo , 915 F.2d 149 , 150 n.2 (5th Cir. 1990) ; see also Jackson v. Bunton , 446 F. App'x 723 , 723 (5th Cir. 2011) (construing a pro se litigant's "motion for reconsideration as a Federal Rule of Civil Procedure 59(e) motion to alter or amend judgment"); 5 Am.
discussed Cited "see" George Jones v. Dustin Anderson
5th Cir. · 2017 · signal: see · confidence high
See United States v. Gallardo, 915 F.2d 149 , 150 n.2 (5th Cir. 1990) (construing post-judgment objection to the magistrate judge’s report as a Rule 59(e) motion).
discussed Cited "see" Teresa Prewett v. Stanely Weems
6th Cir. · 2014 · signal: see · confidence high
See United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990) (holding that the number of envelopes mailed determines the number of child-pornography-transportation violations under 18 U.S.C. § 2252 (a) and thus “[t]he number of photographs in each envelope is irrelevant”).
discussed Cited "see" Mark Hanna v. Delmer Maxwell
5th Cir. · 2014 · signal: see · confidence high
See United States v. Gallardo, 915 F.2d 149 , 150 & n.2 (5th Cir. 1990) (construing objections to the report, filed in a criminal case after entry of the final judgment, as a motion for reconsideration that tolled the time for filing a notice of appeal until after entry of the court’s order disposing of the 5 Case: 12-30399 Document: 00512465902 Page: 6 Date Filed: 12/10/2013 No. 12-30399 motion).
discussed Cited "see" Mark Hanna v. Delmer Maxwell
5th Cir. · 2013 · signal: see · confidence high
See United States v. Gallardo, 915 F.2d 149 , 150 & n.2 (5th Cir. 1990) (construing objections to the report, filed in a criminal case after entry of the final judgment, as a motion for reconsideration that tolled the time for filing a notice of appeal until after entry of the court’s order disposing of the 5 Case: 12-30399 Document: 00512465902 Page: 6 Date Filed: 12/10/2013 No. 12-30399 motion).
discussed Cited "see" Mark Hanna v. Delmer Maxwell (2×)
5th Cir. · 2013 · signal: see · confidence high
See United States v. Gallardo, 915 F.2d 149 , 150 & n. 2 (5th Cir.1990) (construing objections to the report, filed in a criminal case after entry of the final judgment, as a motion for reconsideration that tolled the time for filing a notice of appeal until after entry of the court’s order disposing of the motion).
cited Cited "see" Hunter v. United States Parole Commission
5th Cir. · 2008 · signal: see · confidence high
See United States v. Gallardo, 915 F.2d 149 , 150 n. 2 (5th Cir.1990).
cited Cited "see" Sulaiman v. Schwartz
5th Cir. · 2004 · signal: see · confidence high
See United States v. Gallardo, 915 F.2d 149, 150 (5th Cir.1990); see also Mosley, 813 F.2d at 660 .
discussed Cited "see" Turner v. Johnson
S.D. Tex. · 1999 · signal: see · confidence high
See United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990), cert. denied, 498 U.S. 1038 , 111 S.Ct. 707 , 112 L.Ed.2d 696 (1991) (mailing four separate envelopes containing child pornography constitutes four separate offenses).
discussed Cited "see" United States v. Terry Burton Kimbrough (2×)
5th Cir. · 1995 · signal: see · confidence high
See United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990) ("With respect to the child pornography statute, each 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 central focus of this statute."). 2 In the context of mail fraud, we have also held that "[e]ach separate use of the mail in furtherance of [a scheme to defraud] constitutes a separate crime." United States v. Blankenship, 746 F.2d 233, 236 (5th Cir.1984). 69 The first two sections of the child pornography statut…
discussed Cited "see" BOBBY JAMES CAMMOCK v. BUREAU OF PRISONS; WOODS, Warden
unknown court · signal: see · confidence high
Cammock’s “motion to supplement” must be treated as a Rule 59(e) motion because the motion was filed within ten days of the entry of the judgment dismissing his § 2241 and arguably challenged the district court’s reliance on Venegas v. Henman.** See Mangieri, 29 F.3d at 1015 n.5; see United States v. Gallardo, 915 F.2d 149 , 150 n.2 (5th Cir. 1990).
cited Cited "see" TIJANI AHMAD MOMOH v. ARTHUR STRAPP, Immigration & Naturalization Service District Director
unknown court · signal: see · confidence high
See United States v. Gallardo, 915 F.2d 149 , 150 n.2 (5th Cir. 1990).
discussed Cited "see, e.g." United States v. Cline
5th Cir. · 2021 · signal: see, e.g. · confidence medium
See, e.g., United States v. Gallardo, 915 F.2d 149, 151 (5th Cir. 1990) (analogizing the statute prohibiting the mailing of child pornography with the mail fraud statute, concluding that mailing four separate letters constituted four separate violations even though three of the envelopes were mailed at the same time). 5 As the Eighth Circuit succinctly framed it: “When the same statutory violation is charged twice, the question is whether Congress intended the facts underlying each count to make up a separate unit of prosecution.” United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005).…
discussed Cited "see, e.g." United States v. Daniel Buczkowski
4th Cir. · 2011 · signal: see also · confidence medium
See Bell, 349 U.S. at 84 , 75 S.Ct. 620 ; see also United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990) (per curiam) (concluding that under § 2252(a)(1), each separate act of transporting is a separate offense and that simultaneously mailing four separate envelopes was four separate acts of transportation, but noting that a “defendant arrested with one binder containing numerous photographs has committed only one act of transportation ” (emphasis added)).
discussed Cited "see, e.g." Hill v. Kervin
5th Cir. · 2009 · signal: see also · confidence low
See Mangieri v. Clifton, 29 F.3d 1012 , 1015 n. 5 (5th Cir.1994); see also United States v. Gallardo, 915 F.2d 149 , 150 n. 2 (5th Cir.1990) (construing post-judgment objections to a magistrate judge’s report as a Rule 59(e) motion).
discussed Cited "see, e.g." Hill v. Kervin
5th Cir. · 2009 · signal: see also · confidence low
See Mangieri v. Clifton, 29 F.3d 1012 , 1015 n. 5 (5th Cir.1994); see also United States v. Gallardo, 915 F.2d 149 , 150 n. 2 (5th Cir.1990) (construing post-judgment objections to a magistrate judge’s report as a Rule 59(e) motion).
discussed Cited "see, e.g." United States v. Labean
uscgcoca · 2001 · signal: see also · confidence low
See also United States v. Gallardo, 915 F.2d 149 (5th Cir.1990), ce rt. denied, 498 U.S. 1038 , 111 S.Ct. 707 , 112 L.Ed.2d 696 (1991) (affirming sentence of consecutive six-year terms of imprisonment per violation for simultaneously placing three letters in the mail that contained pornographic photographs, constituting three separate violations of 18 U.S.C. § 2252 (a)(1)).
discussed Cited "see, e.g." United States v. Labean
uscgcoca · 2001 · signal: see also · confidence low
See also United States v. Gallardo, 915 F.2d 149 (5th Cir. 1990), cert. denied, 498 U.S. 1038 (1991) (affirming sentence of consecutive six-year terms of imprisonment per violation for simultaneously placing three letters in the mail that contained pornographic photographs, constituting three separate violations of 18 U.S.C. § 2252 (a)(1)).
discussed Cited "see, e.g." United States v. Woody F. Lemons
5th Cir. · 1991 · signal: see, e.g. · confidence medium
Under those statutes, each use of the mail or wire facilities “for the purpose of executing such scheme” is a separate offense. 18 U.S.C. §§ 1341 and 1343; see, e.g., United States v. Gallardo, 915 F.2d 149, 151 (5th Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 707 , 112 L.Ed.2d 696 (1991); United States v. Blankenship, 746 F.2d 233, 236 (5th Cir.1984). *317 “Multiplicity” is charging a single offense in more than one count in an indictment.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Garry David GALLARDO, Defendant-Appellant
90-5521.
Court of Appeals for the Fifth Circuit.
Oct 19, 1990.
915 F.2d 149
1990 U.S. App. LEXIS 18297
1990 WL 143618
Gary David Gallardo, El Reno, Okl., pro se., LeRoy M. Jahn, Philip Police, Asst. U.S. Attys., Ronald F. Edere, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Gee, Per Curiam, Smith, Wiener.
Cited by 46 opinions  |  Published
PER CURIAM:

Garry David Gallardo was convicted of four counts of mailing photographs of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(1). He appeals his conviction claiming that his consecutive sentences on counts one, two, and[*150] three of the indictment violated the double jeopardy clause because only a single count was appropriate. Finding no error, we affirm.

I.

The defendant was indicted on four counts of mailing photographs of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(1). At rear-raignment, he pleaded guilty to each count and admitted that on March 2, 1987, he had mailed three separate envelopes — the basis of counts one, two, and three — containing a total of 12 photographs. The envelopes were addressed to three different individuals at three different locations. Gallardo also admitted that in January of 1987, he mailed a fourth envelope — the basis of count four — containing one photograph. On July 31, 1987, the district court sentenced Gallardo to consecutive six-year terms of imprisonment on counts one, two, and three, to a ten-year term on the fourth count, and imposed a $200 special assessment. The ten-year term on the fourth count was suspended, and he was placed on probation for five years. Gallardo did not file a direct appeal at that time. [1]

On January 13, 1989, Gallardo filed the instant motion for correction and reduction of his sentence, claiming that the district court violated the double jeopardy clause by sentencing him on three separate counts of mailing photographs of minors engaged in sexually explicit conduct. On April 4, 1989, the magistrate issued his memorandum recommending that Gallardo’s request for relief be denied. Gallardo failed to file any objections to the magistrate’s report.

On September 15, 1989, the district court accepted the magistrate’s memorandum and recommendation and denied relief with respect to Gallardo’s January 13, 1989 motion for correction and reduction of sentence. The judgment was entered October 2, 1989. Gallardo did not appeal the district court’s denial at that time. On October 16, 1989, Gallardo for first time filed his objections to the magistrate’s April 4, 1989 memorandum and recommendation. On January 16, 1990, the district court refused to modify its September 15, 1989 order denying Gallardo relief. Despite the defects in Gallardo’s objections to the magistrate's report, the district court made a de novo review of Gallardo’s untimely objections and then refused to modify its prior judgment. On January 26, 1990, Gallardo filed his notice of appeal.

Although Gallardo did not directly appeal, we treat his appeal from the denial of the postjudgment motion as a timely appeal. [2]

II.

Gallardo’s only contention is that the district court erred in sentencing him to three consecutive six-year terms of imprisonment on three separate counts of mailing photographs of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(1). He does not contest his sus[*151] pended sentence for the fourth count or his $200 special assessment. He asserts that because he mailed all three envelopes containing the photographs at the same time, these acts amount to a single transaction and thus a single offense within the language of the statute. Gallardo also contends that multiple convictions under the same statute violate the double jeopardy and due process clauses; and, because Congress did not express how many convictions should arise from the simultaneous conveyance of three separate envelopes, the rule of lenity should apply.

The language of 18 U.S.C. § 2252(a)(1) reads as follows:

(a) Any person who—
(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
shall be punished....

18 U.S.C. § 2252(a)(1).

Gallardo argues that the phrase “any visual depiction” in this statute is ambiguous as to whether each mailing is a separate offense when more than one envelope containing “any visual depiction ... of a minor engaging in sexually explicit conduct” is mailed in a simultaneous transaction. This court has not addressed this issue in the context of mailing photographs of minors engaged in sexually explicit conduct. We have, however, addressed a similar issue in the context of the mail fraud statute, 18 U.S.C. § 1341. We held that “[ejach separate use of the mail in furtherance of [a scheme to defraud] constitutes a separate crime.” United States v. Blankenship, 746 F.2d 233, 236 (5th Cir.1984). Furthermore, “consecutive sentences may be imposed properly, even if the mailings arose from a single concerted plan to defraud.” United States v. Shaid, 730 F.2d 225, 230 (5th Cir.), cert. denied, 469 U.S. 844, 105 S.Ct. 151, 83 L.Ed.2d 89 (1984).

With respect to the child pornography statute, each 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 central focus of this statute. Gallardo mailed four separate envelopes containing child pornography, thus committing 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. See United States v. Meyer, 602 F.Supp. 1480, 1481-82 (S.D.Cal.1985). Similarly, a single transportation of two women is but one violation of the Mann Act. See Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622, 99 L.Ed. 905, 910 (1955).

Gallardo’s act of placing in the mail four separate letters containing photographs of minors engaged in sexually explicit conduct constitutes four separate violations of 18 U.S.C. § 2252(a)(1); therefore, he was correctly sentenced on four separate counts.

AFFIRMED.

1

. This case covers crimes committed before the effective date of the United States Sentencing Commission Guidelines, so the sentences imposed are not considered in light of the guidelines.

2

. Gallardo pleaded his motion as one under former Rule 35(a) of the Federal Rules of Criminal Procedure. An appeal from the denial of this motion must be filed within ten days of entry of the order denying it to be timely. See Fed.R.App.P. 4(h). The notice of appeal, filed January 26, 1990, is well beyond the period prescribed by Rule 4(b). A motion for “reconsideration" is timely filed if made within ten days of entry of judgment. See United States v. Cook, 670 F.2d 46, 48 (5th Cir.), cert. denied, 456 U.S. 982, 102 S.Ct. 2255, 72 L.Ed.2d 860 (1982). Although Gallardo pleaded his postjudgment motion as "objections” to the magistrate’s report, the motion is, in effect, a challenge to the judgment itself because, at the time the objections were prepared and filed, final judgment had already been entered. The objections thus can be liberally construed as a motion for reconsideration as discussed in Cook. See Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652, 654 (1972).

The objections were served and filed within ten days of the entry of judgment. The objections, construed as a motion for reconsideration, were timely, and the district court had jurisdiction to conduct full review. See Cook, 670 F.2d at 48. The motion for reconsideration was appealed within ten days of its denial, and thus, full appellate review is available.