In United States v. Dudeck, No. 09--3231 (6th Cir. July 28, 2011) (to be published), the panel of Judges Keith, McKeague, and Kethledge remanded a child-pornography case. The defendant argued that double jeopardy precluded conviction for all three of the counts against him. He also appealed his sentence (120 months).
Court found that
possession of child pornography (18 U.S.C. § 2252A(a)(5)(B)) is a lesser-included offense of receipt of child pornography (18 U.S.C. § 2252A(a)(2)(A)), and that it was unclear whether the defendant’s two convictions under 2252(a)(2) and 2252A(a)(2)(A) were based on receiving the same images. Because it was possible that separate conduct or images were involved in each of the convictions, the Court remanded for a determination of whether separate acts or conduct were involved in the convictions for receipt and possession as to each of the three convictions.Plain-error review applied to the double-jeopardy claims.
Court explained that "If the legislative history does not clearly reveal whether the legislature intended that multiple punishments be imposed for the same conduct, the court applies the presumption that multiple convictions contravene legislative intent." So, "when two statutes criminalize the same offense, absent a clear indication that multiple punishments were contemplated by Congress, the Constitution’s Double Jeopardy Clause shields a defendant from conviction and sentencing under both provisions." The Court reiterated the Blockburger v. United States, 284 U.S. 299 (1932), test: whether each statutory provision requires proof of a fact the other provision does not require.
The defendant asserted that he could not receive child pornography without also possessing it, so he was subjected to double jeopardy for being punished for receipt and possession of the same child pornography under his view that possession is a lesser-included offense of receipt. The Court recognized and accepted this argument: "if the Government has proven that a person 'knowingly receives' child pornography in violation of § 2252A(a)(2)(A), it also follows that the Government has necessarily proven that the person 'knowingly possesses' child pornography in violation of § 2252A(a)(5)(B)." Court cited United States v. Ehle, 640 F.3d 689 (6th Cir. 2011), in which it had held that possession under 2252A(a)(5)(B) is a lesser-included offense of receipt under 2252A(a)(2)(A).
Yet while the indictment and plea agreement failed to allege explicitly separate acts for each count, separate dates for these actions, or separate illicit items as the basis for each count, the presentence report contained information revealing the possibility that there was more than one act and that identifiably separate conduct could potentially serve as the basis for each receipt conviction. Court could not tell from the record whether the possession and receipt convictions had separate factual bases. Remand was necessary for more fact finding.
On remand, the district court is to determine whether the receipt and possession occurred on different dates, whether after the receipt the possession was undertaken by transfer to a different medium, and/or whether separate images underlay each charge.
In terms of the 120-month, within-guidelines sentence, it was reasonable (if the district court affirms the convictions on remand).
