Overview

The Fifth Amendment’s Double Jeopardy Clause guarantees protection against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.[1] In general, when a defendant has violated two different criminal statutes, the Double Jeopardy Clause is implicated when both statutes prohibit the same act or transaction, or when one act is a lesser included offense of the other (meaning one offense is lesser than and wholly included within another offense).[2] While Congress has the power to authorize multiple punishments arising out of a single act, if it is not clear that they intended this, a presumption arises that a conviction under multiple statutes for the same offense violates the Double Jeopardy Clause.

To test whether the same act constitutes a violation of two distinct statutory provisions, the court must test whether each provision requires proof of a fact which the other does not (this is known as the “Blockburger test.”). In doing so, the court is to focus on the proof needed to establish the statutory elements of each offense rather than the actual evidence presented at trial.[3] If it is determined that a defendant has suffered a double jeopardy violation, the court must vacate one of the underlying convictions.

Defendants will commonly be charged with multiple child pornography-related offenses, whether in the form of multiple charges for the same collection of material or of charges of differing conduct for the same instance and material. When multiple charges occur simultaneously, for the same materials and the same actions of the defendant, a defendant’s double jeopardy rights might be violated.

[1] U.S.C. Const. Amend. 5. “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

[2] Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996)

[3] Blockburger v. United States, 284 U.S. 299, 300, 52 S. Ct. 180, 180, 76 L. Ed. 306 (1932)

MULTIPLE COUNTS – SAME STATUTE & UNDERLYING CONDUCT

An indictment only violates the Double Jeopardy Clause if it “charges a single offense in separate counts.”[4] Child pornography statutes’ criminalizing of “one or more” offending images demonstrates Congress’s intent that a defendant who simultaneously possessed multiple offending images at a single time and in a single place committed only one single offense.[5]

For example, the First Circuit found that when a defendant was charged with multiple possession offenses for the same material found on two interlinked computers in separate rooms in the same house, only one count of possession was proper, and multiple charges violated the defendant’s double jeopardy rights.[6] The First Circuit also found that charging a defendant with six counts of producing child pornography when he produced six separate videos during a single session with a single session did not violate his double jeopardy rights.[7]

The Second Circuit agrees that the statute intends to “subject a person who simultaneously possesses multiple books, magazines, periodicals, films, video tapes, or other matter containing a visual depiction of child pornography to only one conviction” under § 2252.[8]

[4] United States v. Woerner, 709 F.3d 527 (5th Cir. 2013); United States v. Planck, 493 F.3d 501 (5th Cir. 2007); United States v. Gallardo, 915 F.2d 149 (5th Cir. 1990)

[5] 18 U.S.C. § 2252(a)(4); United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012)

[6] United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012)

[7] United States v. Smith, 919 F.3d 1 (1st Cir. 2019)

[8] United States v. Polouizzi, 564 F.3d 142, 155 (2d Cir. 2009)

POSSESSION & RECEIPT

Double jeopardy challenges for possession and receipt are the most common in child-pornography cases. Defendants are frequently charged with both offenses for the same underlying conduct. The Eleventh Circuit maintains that because “if a person takes ‘receipt’ of a thing, they necessarily must ‘possess’ the thing … the provisions, indeed, proscribe the same conduct.”[9] (Note also that the Supreme Court has addressed the issue with regard to firearms: “proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon … In other words, Congress seems clearly to have recognized that a felon who receives a firearm must also possess it, and thus had no intention of subjecting that person to two convictions for the same criminal act.”[10]).

All circuits to have addressed the issue have therefore concluded that convictions for both possession and receipt of child pornography, based on the same conduct, would violate the Double Jeopardy Clause, because possession of child pornography is a lesser included offense of receipt of child pornography.[11][12] However, a defendant may nonetheless be convicted of both charges if they are based on distinct conduct/materials/dates/facts and not the same underlying conduct.[13]

[9] United States v. Bobb, 577 F.3d 1366 (11th Cir. 2009)

[10] Ball v. United States, 470 U.S. 856, 862, 105 S. Ct. 1668, 1672, 84 L. Ed. 2d 740 (1985)

[11] United States v. Miller, 527 F.3d 54 (3d Cir. 2008); United States v. Ehle, 640 F.3d 689 (6th Cir. 2011); United States v. Muhlenbruch, 634 F.3d 987, 1003 (8th Cir. 2011); United States v. Davenport, 519 F.3d 940, 947 (9th Cir. 2008); United States v. Benoit, 713 F.3d 1 (10th Cir. 2013); United States v. Bobb, 577 F.3d 1366, 1374 (11th Cir. 2009)

[12] The First and Fifth Circuits do not appear to have yet addressed the matter. The Second, Fourth, and Seventh Circuits also have yet to decide the question, because they have only addressed cases in which the receipt and possession charges were based on different materials/conduct/dates/facts, allowing for two separate convictions (United States v. Polouizzi, 564 F.3d 142, 159 (2d Cir. 2009); United States v. Irving, 554 F.3d 64 (2d Cir. 2009); United States v. Schnittker, 807 F.3d 77 (4th Cir. 2015); United States v. Fall, 955 F.3d 363 (4th Cir. 2020); United States v. Halliday, 672 F.3d 462 (7th Cir. 2012))

[13] United States v. Krpata, 388 F. App’x 886 (11th Cir. 2010) (Unpublished); United States v. Bobb, 577 F.3d 1366 (11th Cir. 2009)

POSSESSION & DISTRIBUTION

All courts to have addressed the issue have determined that possession is not necessarily a lesser included offense of distribution.[14][15] For example, “a defendant need not possess child pornography to distribute it,”[16] such as when “the broker of a deal between a person who has child pornography and a person who wishes to procure it may be guilty of distribution but not guilty of possession.”[17] Similarly, “a defendant need not distribute child pornography to possess it,”[18] such that one may collect child pornography but not share it with others.

[14] United States v. Chiaradio, 684 F.3d 265, 280 (1st Cir. 2012); United States v. Finley, 726 F.3d 483 (3d Cir. 2013); United States v. Woerner, 709 F.3d 527, 539 (5th Cir. 2013); United States v. Faulds, 612 F.3d 566 (7th Cir. 2010); United States v. Hansen, 944 F.3d 718 (8th Cir. 2019); United States v. McElmurry, 776 F.3d 1061 (9th Cir. 2015)

[15] The Second, Fourth, Sixth, Tenth, and Eleventh Circuits do not appear to have yet addressed the matter.

[16] United States v. Woerner, 709 F.3d 527, 539 (5th Cir. 2013)

[17] United States v. Chiaradio, 684 F.3d 265, 280 (1st Cir. 2012)

[18] United States v. Woerner, 709 F.3d 527, 539 (5th Cir. 2013)

POSSESSION & PRODUCTION

Whether or not possession is a lesser included offense of production has not been addressed in any published Appellate cases. However, in an unpublished and therefore non-precedent setting case, The Sixth Circuit found that the production of child pornography does not require the defendant to possess the pornography, for a defendant could persuade a minor to take sexually explicit photos of themselves or transport them so someone else can take photos of them. Each statute requires proof of a fact that the other does not. Thus, “persuading or facilitating the creation of child pornography is itself ‘producing’ child pornography, even though the defendant never ‘possessed’ … the end result,” so a conviction for both the production of material and the material’s subsequent possession does not violate double jeopardy.

[19] United States v. Kniffley, 729 F. App’x 406, 411 (6th Cir. 2018)

PRODUCTION & ADVERTISEMENT

The Eleventh Circuit held that being charged for both attempting to produce child pornography and advertisement of child pornography does not violate a defendant’s double jeopardy rights, because both statutes require proof of conduct that the other does not.[20]

[20] United States v. Lee, 29 F.4th 665 (11th Cir. 2022)

CONSPIRACY & CHILD EXPLOITATION ENTERPRISE

Convictions for conspiring to advertise, transport, receive, and possess child pornography are lesser included offenses of engaging in a child exploitation enterprise, and convictions for both/all counts violate the Double Jeopardy Clause.[21]

[21] United States v. Wayerski, 624 F.3d 1342, 1351 (11th Cir. 2010)

OTHER CASES

The above examples represent the most common challenges of double jeopardy for child pornography-related charges. It is certainly possible for other instances of double jeopardy to arise, especially if the charges are based on the same underlying conduct.