Case o' The Week: Child Porn Conviction in (Double) Jeopardy, Davenport

Judge Gould (right) delivers a doubly-interesting decision for the defense. See United States v. Winston Davenport, __ F.3d __, 2008 WL 732491 (9th Cir. Mar. 20, 2008), decision available here. First, Judge Gould explains that possession of child pornography is a lesser-included offense of receipt of child pornography: it violates Double Jeopardy to be convicted of both. Second, Davenport rejects the government's reliance on (some types of) affirmative defenses to defeat the Blockburger Double Jeopardy analysis.

Players: Decision by Judge Gould (joined by Judge Canby); dissent by Judge Graber.

Facts: Davenport pleaded guilty to possession of child porn and receipt of child porn. Id. at *1.

Issue(s): “[W]e address whether Davenport’s conviction for both 18 U.S.C. § 2252A(a)(2), or receipt of child pornography, and 18 U.S.C. § 2252A(a)(5)(B), or possession of child pornography, offends double jeopardy when the conduct underlying both offenses is the same.” Id. at *1 (emphases added).

“Davenport urges us to conclude that the offenses described in 18 U.S.C. § 2252A(a)(2) [receipt] also cover the offenses described in 18 U.S.C. § 2252A(a)(5)(B) [possession], so that possession is a lesser included offense of receipt. Davenport asserts that, while the government may have been within constitutional boundaries to include both offenses in the indictment, and could permissibly have continued to prosecute Davenport for both offenses through trial, . . . entering judgment against him on these counts was multiplicitous and therefore in violation of the Fifth Amendment’s prohibition of double jeopardy.” Id. at *3.

Held: “We agree.” Id. at *3. “[W]e determine that Davenport’s simultaneous conviction for both receipt and possession of child pornography violates the Fifth Amendment's prohibition on double jeopardy.” Id. at *1.

Of Note: Davenport is an important Double Jeopardy case. Arguing against the defense challenge, the government emphasized that possession has an affirmative defense, while receipt does not. The Ninth didn’t buy it, and refused to treat (certain) affirmative defenses as factors that undercut the Blockburger analysis:

We . . . decline to consider affirmative defenses . . . that do not directly negate an element of the crime but instead address mitigating circumstances, as ‘facts’ that ‘require’ proof for purposes of the Blockburger analysis.

Id. at *4 (emphasis added).

The importance of this (new?) Blockburger rule isn’t lost on dissenting Judge Susan Graber, (left) who complains of a creating circuit split on this issue. Id. at *6 (Graber, J., dissenting).

How to Use: Receipt of child porn carries a five-year mandatory minimum; possession (absent priors) has no mand-min. How does the defense bar exploit Davenport to avoid the receipt mandatory-minimum? First, there are technical, forensic defenses to receipt that don’t apply to possession – recall our talk at the ND Cal Sex Crimes seminar. It is conceivable (though admittedly tough) that a defendant could manage a lesser-included “possession” win at trial.

Second, are indictments that allege both possession and receipt now arguably multiplicitous? (Recall that even without an objection below multiplicity isn’t waived for appeal! See United States v. Zalapa, 509 F.3d 1060, 1061 (9th Cir. 2007) (“We hold that a defendant who fails to object in the district court to multiplicitous convictions and sentences does not waive his or her right to raise a double jeopardy challenge on appeal.”))

For Further Reading: Does a quick plea to a straight possession charge (with no mandatory minimum) preclude a subsequent “receipt” prosecution? A great idea – but probably a no-go in the Ninth. See United States v. Kuchinski, 469 F.3d 853, 859 (9th Cir. 2006) (“Kuchinski sought to avoid that result with the claim that once he pled guilty to possession of child pornography . . ., he could not be tried for receipt of child pornography . . . .That was because, he said, the former was a lesser included offense of the latter. While the argument has some plausibility on its face, it is based on a flawed reading of double jeopardy law.”); see also blog here.

Kuchinski deserves a close second-look, though; its claim that there was no double jeopardy violation because these counts were “grouped” at sentencing may have ignored the impact of the receipt mand-min sentence. This is a sub-sub-sub field of the Double Jeopardy analysis: whether convictions for multiplicitous counts violate Double Jeopardy if the sentences are grouped. Can Kuchinski be reconciled with Davenport on this issue? More importantly, in a future case where the receipt mand-min precluded a possession downward departure, wouldn't possession/receipt convictions violate double jeopardy (even if they were "grouped" under the guidelines?) Merits some thought.



Drawing of Judge Susan Graber from law.com, at http://www.law.com/regionals/ca/judges/9circuit/graber.htm

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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