11th Circuit holds cant be convicted of both “possession” and “receipt” of CP
The 11th Circuit Court of Appeals (which covers Florida), last week held that being convicted of both “possession” and “receipt” of child pornography violates Double Jeopardy. The court found that “possession of child pornography is a lesser-included offense of receiving child pornography, so it violated the Double Jeopardy Clause for him to be convicted of both.
The case can be read here: https://media.ca11.uscourts.gov/opinions/pub/files/201811737.pdf
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Then explain why it’s not double jeopardy in the case of Derek Chauvin. Only one person was killed (Floyd) but he was convicted of second degree murder, third degree murder, and manslaughter. How can someone be convicted of basically 3 types of murder when there was only one victim? Seems like double jeopardy as well.
Disgusted
If I was the prosecution I would say because we are charging his Body, his soul and his spirit. The forms of Derek equals 3 charges.
Like me I had one incident but got charged with sexual battery, Unlawful touching, Sexual assault, Intent to commit, and a bunch more things that were meant for plea bargaining. Problem was I had no money for a trial after hiring a lawyer and bonding out twice.
Prosecution basically got everything she wanted and cake as well.
I think the key is whether the elements of the lesser charges are a subset of those in the greater charge. In that case, it is considered a “lesser included offense” and double jeopardy applies. If there is an element in the lesser charge that is not in the greater, then it is not double jeopardy. It just all depends on how the statutes are written. I’m not a lawyer, so this comment may require more than a grain of salt.
Although none of this relates to me (I had actual contact with someone) It is a great victory for those who this pertains to. Some progress in the right direction.
Oh yeah, and when I was in law enforcement, they taught us in the academy to charge people with as much as possible and hope it sticks. Also that gives the prosecution more leeway for plea bargaining.
For example, if someone was caught shoplifting, we also charges them with a BS trespassing charge which was almost always thrown out.
Cherokeejack….
Yes SIr…It is Called ‘Stacking the Cards’;
thus that all Charges Will Always Appear on Your Rap Sheet, regardless of Conviction; it Makes the Defendant Appear to Society as More of A Scoundrel; it is all About, Ill-Intent;…Ask John Walsh!
Thank You!
Truth
Well I am a good example of that. My occasion was ONE incident. But on my registry page makes me look like a monster. I have even had neighbors say “Well if you had just sex with your young girl friend, why so many charges?”
I do not even try and explain it anymore. I tell them if you are that worried, go down to the court house, pay for the records and knock yourself out.
I had my FDLE page changed once with a lawyer, and it ended up making it worse. They changed me from 2 times a year to 4 times a year registration. The lawyer said for $1000 he would get it corrected. “Nice try pal, not falling for that again”
I think if I challenged the FDLE again, they would change me from an offender to a predator. Not worth finding out. When you challenge any law enforcement, expect revenge.
Who’s scratching their head? Haven’t we all been scratching our heads since the time this encounter came upon others in many forums and fashions. Double -Jeopardy now someone is using understand. Why put yourself in jeopardy or who is doing the lesser of two evils.
Sure their is a right way to do things but who pats a girl on the toosh and gets beer in their face or who instills on another for some advantage. So were is the lesser of the two evils in this government triangle.
Yes, that would make sense: The only way you could be in possession of CP – if you did not receive it – would be if you had manufactured it yourself.
Notably worse than receiving, I would think.
This has been argued repeatedly in front the the 11th Circuit for more than a decade, as best as I recall. It’s about time they got it right.
This is an amazing breakthrough. Offenders and their lawyers have been scratching their heads over this since the PROTECT Act of 2003 established mandatory minimums for one and not the other.
The other thing that has everyone scratching their heads is why “receipt” has a 5 year mandatory minimum while possession does not. You can’t be in possession of something without having received it (which would be a far worse offense – manufacturing it), so why the harsher sentence?
The feds threatened to charge me with both. They said I was.looking at 15-20 years because they would stack the charges and get the sentencing to run consecutively. I told em if they did that, then it would ensure a trial. They used that threat to try and force a plea. I didn’t take the plea and went to trial anyway on only one count of simple possession. Guilty verdict anyway on a shared computer even with a tight alibi that I wasn’t on the system when it was being used and it had no remote capabilities. I got some prison time anyway because I rolled the dice but in doing so I got all the transcripts that show how the feds lie in court to win.
F Da Feds
And you didn’t appeal the crap out of it? if you had evidence you were not on the computer at that time, someone along the legal staircase should have demanded an investigation into those claims.
Cherokee,
My direct appeal was virtually worthless because the federal defenders office did that part since I was out of money. They didn’t argue anything other than whether the sentencing judge erred in the sentence. Federal public defenders are worthless.
F Da Feds
Yeah I had the same issue. If they had not ran me out of money, I would never gone to prison. My parents offered to pay the lawyers but was not going to cause my parents to lose their house for a crime I committed. But I totally would have won in trial. (Forced confession after asking for a lawyer 3 times and being denied that right)
FAC, I suspect the answer to your question is that the law was written by Congress. Those in the legislative branch are not renowned for incisive analyses when writing statutes. Somebody perhaps reasoned that receipt was required for distribution to occur and thus implies greater culpability than mere possession.
My favorite logical inconsistency involves possession. Both 18 USC 2252 and 2252A address possession. In 2252(a)(4) uses the phrase “1 or more” in describing possession of pornographic matter. In 2252A(a)(5), the word “any” is used for possession. The courts have determined that the word “any” allows multiple units of prosecution (charges), whereas “1 or more” limits prosecution to a single charge. So for the same activity, a person could be subject to vastly different indictments, convictions and punishment. Go figure.
Veritas.
I think the issue is that you can possess CP without receiving it if you are the person who created the CP.
Correction, not a breakthrough: ‘This Circuit has already held that possessing child pornography is a lesser-included offense of receiving it.’
Good discussion for individuals that are currently facing the system; however, remember once your sentence is served and your on the registry it really does not matter what the offense is, your name is still on the registry and for the most part, people don’t distinguish crimes, the fact that your name exists on there is the problem. In fact most individuals don’t understand the difference between an offense that triggers you to be labeled a “Sex Offender” or a Sex Predator”. I believe most computer crimes are considered SO designations.