More Double Jeopardy and CP

Lots of action this week in the Circuit.  It's been really busy, so I can't post on everything, but there are good posts on the Sixth Circuit blog:

www.circuit6.blogspot.com.

And here's more on the child-pornography double-jeopardy issue that follows up on Dudeck (September 14 post).  The sentencing discussion also follows up a little on Bistline (January 14 post).  United States v. Hutchinson, No. 10-4603 (6th Cir. Feb. 1, 2012) (unpublished).  Panel of Judges Moore, Clay, and McKeague. 

Background:
* 188-month sentence for CP receipt/possession/distribution.
* D had been trading CP on-line.
* 10,405 images + 61 videos. 
* Guilty plea.
* Total OL 37.  Crim hist category II.  Range of 235 to 293 months.
* 240-month stat max. 
* Sentencing ct found that reduced range of 151 to 188 was sufficient. 

Issues:
* D took issue with application of number-of-images enhancement.
* D claimed his sentence violated double-jeopardy principles.

Court agreed on the double-jeopardy issue and vacated in part and remanded. 

Discussion:
* D objected to the number-of-images enhancement. 
* Even discounting the duplicate images, there were 9,382 images.  That number was well over the 600 needed for the enhancement. 
* The number-of-images enhancement does not violate separation of powers.
* Congress had a "uniquely active role" in crafting the CP GLs.  Intent to deter and punish.  Citation of Commission's History of the Child Pornography Guidelines from October 2009.  Congress retained ultimate authority over fed sentencing despite delegation to Commission.  This authority from earlier case law was binding on this panel. 
* Double-jeopardy claims reviewed for plain error. 
* Double-jeopardy violation b/c allegations in indictment supported by same conduct.  The defendant "possessed only those materials he had already received via online trading."  And "[t]he fact that he went on to distribute duplicates of some of those images does not mitigate the fact that the possession charge was a lesser-included offense of receipt."  Separate and distinct conduct did not form the basis for each offense.  There was plain error. 
* The error was plain even though the district court decided the case before the definitive Sixth Circuit case was published.  There was sufficiently analogous Supreme Court precedent at the time to make the error plain. 
* While the sentences were to run concurrently, so the only practical difference based on the double jeopardy violation was the amount of the special assessment, the special assessment was enough to affect the D's substantial rights. 
* Conviction for lesser included offense should be vacated. 
* Also there could be a violation if 2252(a)(2) and 2252A(a)(2) convictions not based on different images.  Remand for further fact-finding. 


 

Cert Granted re Double Jeopardy

Double rainbow, double jeopardy. . . .

No 6th Cir opinions today. But the S Ct granted cert in Blueford v. Arkansas, No. 10-1320. The Ct's going to consider whether, if a jury is deadlocked on a lesser-included offense, double jeopardy bars reprosecution for a greater offense after a jury has announced that it has voted against guilt on that offense.

Stay tuned!

More Double Jeopardy and CP: Amended Opinion

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.

CP and Double Jeopardy

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).