M.D. Ala.: Possession of child porn is not lesser-included offense of production
U.S. v. Dean, No. 2:08cr65-MHT, 2009 WL 4023127 (M.D. Ala. Nov. 23, 2009)
Possession of child porn is not lesser-included offense of production.
Following a guilty plea for producing obscene material and possession of child pornography, Jack Furman Dean, Jr. filed a motion for a new trial citing the Double Jeopardy Clause of the 5th Amendment (in arguing that he was “convicted of possessing and producing the same materials”) and the overbreadth of 18 U.S.C. § 1466A(a)(2), which regulates the production of child pornography. U.S. District Judge Myron H. Thompson denied Dean’s motion.
Following a 20 year sentence for the production and ten for possession, Dean was instructed to raise his objection that possession is a lesser-included offense of production via a motion for new trial to which he added the claim that § 1466A(a)(2) violates the First Amendment because it is overbroad.
“The Fifth Amendment’s Double Jeopardy Clause provides that ‘no person . . . shall be subject for the same offense to be twice put in jeopardy of life or limb’ . . . The prohibition against multiple punishments for the same offense is at issue in this case.” According to the 11th Circuit in United States v. Williams, 527 F.3d 1235 (11th Cir. 2008), “when a single, completed criminal transaction violates two or more criminal statutes, the Double Jeopardy Clause does not shield a defendant against prosecution under one or more of the applicable statutes so long as ‘each statute requires proof of an additional fact which the other does not.’” However, according to the holding in Rutledge v. United States, 517 U.S. 292 (1996), the Double Jeopardy Clause “protects a defendant who has been charged with a crime that is a lesser-included offense of another charged crime.” In that light, the court rejected Dean’s claim:
Dean’s lesser-included offense argument fails because he overlooks an important distinction between the two statutes. Although both statutes target sexually explicit depictions of minors, a careful reading reveals that each requires proof of a fact not required by the other. The possession offense requires the government to prove that the images possessed are either of an “actual” minor or, at least, “indistinguishable” from an actual minor . . . The production statute, on the other hand, explicitly states that, “It is not a required element of any offense under this section that the minor depicted actually exist”; nor is there anything in the statute to indicate that it is a required element that the image be “indistinguishable” from an actual minor . . . Likewise, the production offense includes an element not shared by the possession offense: The images produced must “lack[] serious literary, artistic, political, or scientific value.
Dean made a facial challenge against § 1466A(a)(2), arguing that it is substantially overbroad under the First Amendment. According to the court, “to be prohibited, images of the ‘sexual abuse of children’ must either (1) be obscene under Miller v. California, 413 U.S. 15 (1973) or (2) depict actual children.” However, the “plain language” of § 1466A(a)(2) “does not require that the images be obscene under Miller.”
The court concludes that § 1466A(a)(2) criminalizes the production of images that neither satisfy the Miller test nor depict actual children and that it therefore may reach some protected speech. Nonetheless, Dean’s argument must fail. The statute prohibits depictions of graphic bestiality, sadistic and masochistic abuse, or sexual intercourse involving minors that lack serious literary, artistic, scientific or political value. Dean and his attorney have not provided, and the court has been unable even to imagine, a single example of speech covered by the statute that would not also (a) appeal to the prurient interest and (b) be patently offensive. Thus Dean has failed to establish any actual overbreadth . . . the court does not hold that other litigants could not establish that the statute is unconstitutional as applied to them. Rather, the court merely concludes that Dean’s facial challenge must fail because the statute does not reach substantial protected speech. (emphasis in original)
COMMENTS
