On July 28, 2011, the Sixth Circuit decided United States v. Dudeck, No. 09-3231 (see older post on this blog). On September 14, 2011, the Court issued an amended opinion (to be published). Panel of Judges Keith, McKeague, and Kethledge. Mr. Dudeck proceeded pro se.
The defendant had asserted that double jeopardy precluded conviction on all three CP counts. Court concluded that possession of CP (18 U.S.C. 2252A(a)(5)(B)) is a lesser-included offense of receipt (18 U.S.C. 2252A(a)(2)(A)). Because it was unclear whether the two convictions under 2252(a)(2) and 2252A(a)(2)(A) were based on receiving the same images, the Court remanded. Issue for remand is whether separate acts underlie the convictions.
Double-jeopardy analysis conducted under plain-error standard. The Court considered the issue of whether conviction under both 18 U.S.C. 2252A(a)(2)(A) and 2252(A)(a)(5)(B) (this citation in the opinion appears to be a typographical error) for the same material is permissible in United States v. Ehle. The Ehle court concluded that possession under 2252(A)(a)(5)(b) (again, this citation appears to be an error) is a lesser-included offense of receipt under 2252A(a)(2)(A). Conviction under both sections is acceptable if based on separate conduct.
Whether there was separate conduct in this case was unclear, so remand was necessary.
Next argument was that convictions for receiving CP under 2252(a)(2) and receiving CP under 2252A(a)(2) violated double jeopardy. One section deals with pictures of real minors; the other section deals with pictures of real minors or "virtual" minors. Remand necessary to determine whether the defendant received different kinds of images.
The 120-month, within GLs sentence was reasonable (if all the convictions are affirmed on remand).
Why the amended opinion? On August 23, the government filed for rehearing. On September 14, the Court denied this petition, and filed the amended opinion. The petition for rehearing cited confusion as to which counts would be vacated should the district court conclude that there was a violation of double jeopardy. The government argued that the count with the lower punishment should be vacated and the one with the higher punishment should stand. The amended opinion seems to clear up the confusion.
