11th Circuit upholds child pornography conviction against Double Jeopardy challenge
U.S. v. Edward Curtis Bobb, No. 07-13252 (11th Cir., Aug. 6, 2009)
11th Circuit upholds conviction for “receipt” and “possession” against Double Jeopardy challenge because criminal conduct occurred on different days.
At issue in this case is a 5th Amendment Double Jeopardy claim made by a man convicted on one count of “possession,” and one count of “receipt” of child pornography. While the 11th Circuit agreed that 18 U.S.C. § 2252A(a)(2) [prohibiting receipt] and 18 U.S.C. § 2252A(a)(5)(B) [prohibiting possession] “proscribe the same conduct” and held that Congress did not intend to “impose multiplicitous punishment for possession and receipt of child pornography,” the court ruled against Bobb for the following reason:
Bobb’s convictions and sentences were based on two distinct offenses, occurring on two different dates, and proscribed by two different statutes. Count I of the indictment charged Bobb with taking “receipt” of child pornography on November 12, 2004, while Count II charged Bobb with having “possession” of child pornography in August 2005.
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Agreeing with Bobb that possession is a “lesser included offense of receipt,” the 11th Circuit followed Ball v. United States, 470 U.S. 856 (1985), United States v. Miller, 527 F.3d 54 (3d Cir. 2008), United States v. Davenport, 519 F.3d 940, 947–48 (9th Cir. 2008), United States v. Giberson, 527 F.3d 882, 891 (9th Cir. 2008), United States v. Brobst, 558 F.3d 982, 1000 (9th Cir. 2009). The court, however, distinguished the instant case:
While we agree with Bobb’s opening argument, that “possession” is a lesser included offense of “receipt,” his appeal ultimately fails. Unlike the facts in Ball, Miller, Davenport, Giberson, and Brobst, where the defendants were convicted and sentenced under two different statutes for the same offense, Bobb’s convictions and sentences were based on two distinct offenses.
COMMENTS
