United States v. Yard, 2014 WL 803892 (C.A.3 (Pa.)), March 2014

Facts: Undercover FBI Agent using a peer to peer file sharing program searched for available CP images. The Agent downloaded 31 images from the available 1,100 images Appellant had available for sharing. A search warrant was executed, and Appellant’s computer was seized. The forensic examination revealed a collection of 5,800 images and 378 videos of CP; including the same images previously downloaded by the FBI Agent. Appellant was charged with possession and distribution of CP (1 of the 31 images downloaded). The image that made up the distribution charge also was included in the possession charge.   Appellant pled guilty to both counts.

Attack on Double Jeopardy Regarding Images: Appellant contends on appeal that his conviction for distribution (of the one image also included in his possession charge) violated his rights under the Double Jeopardy Clause of the Fifth Amendment. Appellant attempted to analogize this situation to United States v. Miller, 527 F.3d 54, 60 (3d Cir.2008) in which we held that possession of child pornography, in violation of 18 U.S.C. § 2252A (a)(5)(B), is a lesser-included offense of receipt of child pornography, in violation of 18 U.S.C. § 2252A (a)(2), so entry of judgments of conviction under both statutes, based on the same images, is plain error. See also id. at 71 (“[A]s a general matter, possession of a contraband item is a lesser-included offense of receipt of the item.”).571 (7th Cir.2010) (affirming convictions for distribution and subsequent possession of the same images of child pornography).

Law: “The Fifth Amendment right to be free from duplicative prosecutions and punishment is a hallmark of American jurisprudence.” United States v. Jackson, 443 F.3d 293, 301 (3d Cir.2006); see also United States v. Haddy, 134 F.3d 542, 548 n. 7 (3d Cir.1998) ( “Indictments charging a single offense in different counts are multiplicitous. Multiplicity may result in multiple sentences for a single offense in violation of double jeopardy, or otherwise prejudice the defendant.”). To prevail on plain error review, Yard must show that “the entry of separate convictions constitutes an (1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”

Holding: As the Seventh Circuit explained in rejecting the identical Double Jeopardy challenge pressed here, “Congress intended to punish possession of child pornography as well as distribution, and [a defendant’s]  continued possession of the pornography was an independent crime subject to sanction. The fact that he happened also to distribute it [some time] earlier does not insulate him from liability for continued possession [some time] later.” United States v. Faulds, 612 F.3d 566, 567. Miller is unhelpful to Yard. While one who knowingly receives an image necessarily also knowingly possesses that image, it does not follow that one who distributes an image always continues also to possess that image even after distributing it.

Moreover, whereas possession and receipt of child pornography are “directed to similar, rather than separate, evils,” id. at 72 (internal quotation marks omitted)—that is, the victimization of a child by a defendant’s acceptance and retention into his collection of a record of that victimization—the distribution offense is directed to the separate evil of sharing that image with another individual, thereby adding to the victimization of the child by enabling another individual to possess the same image.

Affirmed.

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