No Double Jeopardy from Child Porn Charges

A defendant indicted on multiple child pornography charges does not have a double jeopardy claim based on his conviction of receipt of child pornography after he first pleaded guilty to possession; the government divided the counts between images on two separate computer hard drives, and the 4^th Circuit finds no double jeopardy violation and affirms defendant’s conviction.

When defense counsel informed the prosecutor about defendant’s plans to plead guilty to the possession charge and go to trial on the receipt charge, the government sent an email to defense counsel stating that images found on a Maxtor computer hard drive would support the receipt charge and images on a Western Digital hard drive would support the possession charge. In response to another inquiry from defense counsel, the government sent spreadsheets that listed the child pornography files on each hard drive reviewed by the forensics experts. A review of the spreadsheets showed that at least some of the file names on the Maxtor hard drive were different from the file names on the Western Digital hard drive.
The statement of facts signed by defendant in his guilty plea named the Western Digital hard drive but did not mention the Maxtor hard drive, and provided that the Western Digital hard drive contained over 1,000 images and videos of child pornography.

The district court denied defendant’s motion to dismiss a superseding indictment that varied only in moving the start date of the unlawful activity covered by the receipt charge forward from January 2011 to April 2010, and convicted him on the receipt charge.

As the government notes, our sister circuits appear to agree that possession of child pornography is a lesser-included offense of receipt of child pornography, reasoning that the crime of possession of child pornography under 18 U.S.C. § 2252(a)(4) does not contain an element different from the elements that constitute the crime of receipt of child pornography under § 2252(a)(2). Assuming without deciding that the subject offenses in this case are the same in law, we turn to the question of whether the two offenses here are also the same in fact.

We conclude that an objective person in defendant’s position would have understood that he was pleading guilty to possession of child pornography only in regard to the pornography on the Western Digital hard drive. Admittedly, both counts of the indictment referred generally to child pornography, the indictment’s forfeiture clause referenced both hard drives and the statement of facts supporting defendant’s guilty plea contained an open-ended reservation provision. But these points are not enough to overcome the mass of evidence demonstrating that, at the time defendant pled guilty, a reasonable person would know full well that he was pleading guilty only in regard to the child pornography on the Western Digital hard drive.

Further, a government witness testified that many files on the Maxtor hard derive “were not duplicates” of the files on the Western Digital hard drive. Consequently, because defendant confessed to possessing over 1,000 images or videos of child pornography, at least some of which did not ground the receipt conviction, there is more than sufficient proof in the record that the possession conviction was based on an image the receipt of which did not form the basis of the receipt conviction. In sum, the two offenses at issue were not the same in fact.

Conviction affirmed.

U.S. v. Schnittker (Wilkinson) No. 14-4905, Dec. 2, 2015; USDC at Alexandria, Va. (Trenga) Cary Citronberg for appellant; Christopher J. Catizone, AUSA, for appellee. VLW 015-2-177, 13 pp.